Filed 2/29/24 Asiryan v. Med. Staff of Glendale Adventist Med. Center CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule 8.1115(b).
This opinion has not been certified for publication or ordered published for purposes of
rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
VARDUI ASIRYAN, B316313
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. 19STCV02196)
v.
MEDICAL STAFF OF GLENDALE
ADVENTIST MEDICAL CENTER,
Defendant and Respondent.
B317728
VARDUI ASIRYAN,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. 19STCV02196
v.
GLENDALE ADVENTIST MEDICAL
CENTER et al.,
Defendants and Respondents.
APPEALS from the judgment and an order of the Superior
Court of Los Angeles County, Richard L. Fruin, Jr., Judge.
Affirmed (appeal No. B316313); affirmed in part and reversed in
part with directions (appeal No. B317728).
Fenton Law Group, Nicholas D. Jurkowitz and Dennis E. Lee
for Plaintiff and Appellant.
Cole Pedroza, Kenneth R. Pedroza and Scott M. Klausner for
Defendants and Respondents.
___________________________
Plaintiff Vardui Asiryan is a licensed obstetrician and
gynecologist who around November 2015 obtained medical staff
privileges at defendant Glendale Adventist Medical Center dba
Adventist Health Glendale (GAMC). Defendant Medical Staff
of Glendale Adventist Medical Center (the Medical Staff) “is a
separate legal entity, an incorporated association, which is required
to be self-governing and independently responsible from [GAMC]
for its own duties and for policing” “physicians who are given staff
privileges to admit patients and practice medicine [at GAMC].”
(Hongsathavij v. Queen of Angels etc. Medical Center (1998) 62
Cal.App.4th 1123, 1130, fn. 2.) In October 2018, the Medical
Staff suspended Asiryan’s privileges at GAMC without holding
a hearing or giving Asiryan prior notice. Asiryan resigned
those privileges the day she learned of the decision.
Asiryan sued GAMC and the Medical Staff (collectively,
the defendants), alleging they failed to comply with statutory
and common law procedural requirements in connection with
suspending her privileges at GAMC. She further alleged that
the Medical Staff lied to her regarding their obligations to report
her suspension and resignation to the state licensing board, and
that this violated the staff ’s statutory and common law notice
obligations.
Asiryan appeals from a judgment in the Medical Staff ’s
favor. She argues that the court reversibly erred when, based
on its incorrect interpretation of the relevant case law and the
2
Business and Professions Code sections addressing due process
requirements for hospital peer review (see Bus. & Prof. Code,
§ 809 et seq.),1 the court (1) granted a motion for nonsuit on
her claim under the common law doctrine of fair procedure and
(2) rejected Asiryan’s proposed jury instructions. She further
argues the court abused its discretion when it denied Asiryan’s
request, made after trial had commenced, to amend her complaint.
Finally, Asiryan also appeals from the court’s order awarding
defendants attorney fees under section 809.9, the relevant attorney
fees statute. She argues the court erred in concluding her peer
review claims were without foundation and unreasonable for
purposes of that section.
We hold that the trial court correctly concluded the code is
the sole source of procedural protections in connection with hospital
peer review, and that the common law doctrine of fair procedure
does not supplant those protections with additional guarantees.
Based on this interpretation, we conclude the court correctly
granted the nonsuit on Asiryan’s common law peer review claims
and correctly rejected her proposed jury instructions regarding
peer review. We further hold that the court did not reversibly err
in denying Asiryan leave to amend. For these reasons, we affirm
the judgment.
We reach a different conclusion regarding Asiryan’s appeal
from the order awarding attorney fees. Given the court’s rulings
denying certain portions of defendants’ summary judgment and
nonsuit motions as to the Medical Staff, we conclude a hypothetical
reasonable attorney could have deemed Asiryan’s peer review
claims against the Medical Staff tenable and reasonably decided
1 Unless otherwise indicated, all unspecified statutory
references are to the Business and Professions Code.
3
to take them to trial. This same logic does not apply to the fees
awarded to GAMC, because the court disposed of the claims against
GAMC on summary judgment. We therefore reverse the court’s fee
order to the extent it awards fees to the Medical Staff, but affirm
the order as it applies to GAMC.
BACKGROUND
A. Legal Background: Code Sections Governing
Hospital Peer Review and Related Reporting
Requirements
“Under [California] law, a licensed hospital facility must
have ‘a formally organized and self-governing medical staff
responsible for “the adequacy and quality of the medical care
rendered to patients in the hospital.” (Cal. Code Regs., tit. 22,
§ 70703, subd. (a).)’ (Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 10 . . . ,
italics omitted; Oliver v. Board of Trustees (1986) 181 Cal.App.3d
824, 826–827 . . . .) The medical staff acts primarily through
a number of peer review committees, which, along with other
responsibilities, assess the performance of physicians currently
on staff . . . . (Cal. Code Regs., tit. 22, § 70703, subds. (b) & (d).)”
(Unnamed Physician v. Board of Trustees (2001) 93 Cal.App.4th
607, 616 (Unnamed Physician).)
Several code sections address the efforts of such “peer
review bod[ies,]” a term statutorily defined to include the “medical
or professional staff of any health care facility or clinic” (§ 805,
subd. (a)(1)(B)(i)), regarding the discipline and oversight of licensed
physicians and other health care provider “ ‘[l]icentiate[s]’ ” (§ 805,
subd. (a)(2)) affiliated with the facility or clinic. (See generally
§§ 805–809.9.) The code defines “[p]eer review” in this context
as, inter alia, the process of the staff reviewing “the basic
qualifications, staff privileges, employment, medical outcomes,
4
or professional conduct of licentiates” for disciplinary, investigatory,
or quality improvement purposes. (§ 805, subd. (a)(1)(A)(i).) For
ease of reference, we will refer to these provisions of the code
(§§ 805–809.9) as the California peer review statute. We briefly
summarize the portions of this statute most relevant to the instant
appeal.
A peer review body or the administration of the body’s
affiliated hospital must file a “ ‘805 report’ ” (§ 805, subd. (a)(7))
to the “relevant [licensing] agency” regarding a licentiate when,
“for a medical disciplinary cause or reason,” it takes any of
several actions outlined in the statute. (§ 805, subds. (b)(1)–(b)(3).)
Specifically, a section 805 report is required when a licentiate’s
“application for staff privileges or membership is denied or rejected”
(§ 805, subd. (b)(1)), a licentiate’s “membership, staff privileges,
or employment is terminated or revoked” (§ 805, subd. (b)(2)),
or “[r]estrictions are imposed, or voluntarily accepted, on staff
privileges, membership, or employment for a cumulative total
of 30 days or more for any 12-month period” (§ 805, subd. (b)(3)).
“An 805 report shall also be filed within 15 days following the
imposition of summary suspension of staff privileges, membership,
or employment, if the summary suspension remains in effect
for a period in excess of 14 days.” (§ 805, subd. (e).) Finally,
a section 805 report is also required when, “after receiving notice
of a pending investigation initiated for a medical disciplinary cause
or reason,” a licentiate “[r]esigns or takes a leave of absence from
membership, staff privileges, or employment.” (§ 805, subd. (c)
& (c)(1).)
The statute also sets forth certain notice and hearing rights
for licentiates “who [are] the subject of a final proposed action of
a peer review body for which a report is required to be filed under
[s]ection 805.” (§ 809.1, subd. (a); see Unnamed Physician, supra,
5
93 Cal.App.4th at p. 616.) Namely, section 809.1 “entitle[s]” the
subject licentiate “to written notice . . . [of] the ‘final proposed
action’ ” (§ 809.1, subd. (a)), which notice must also inform the
licentiate that a section 805 report will be filed and that the
“licentiate has the right to request a hearing on the final proposed
action” (§ 809.1, subd. (b)(3)) and “[t]he time limit, within which to
request such a hearing.” (§ 809.1, subd. (b)(4); see § 809.1, subd. (b)
& (b)(1)–(4).) Further, “[i]f a hearing is requested on a timely basis,
the peer review body [must comply with additional written notice
requirements regarding the hearing].” (§ 809.1, subd. (c).) The
statute also specifically guarantees several elements of due process
be incorporated into such hearings, such as the right to call and
confront witnesses and to present evidence, and the right to a
written decision by a trier of fact. (See §§ 809.1, subds. (a) & (b),
809.2, subd. (a), 809.3, subds. (a)(3), (4) & (b)(1), (2), (3), 809.4,
subd. (a)(1); see also Unnamed Physician, supra, 93 Cal.App.4th
at p. 617 [“[t]he statutory scheme delegates to the private sector the
responsibility to provide fairly conducted peer review in accordance
with due process, including notice, discovery and hearing rights, all
specified in the statute”]; see also §§ 809–809.8.) “Notwithstanding
[any of these procedural guarantees, however,] a peer review
body may immediately suspend or restrict clinical privileges of
a licentiate where the failure to take that action may result in
an imminent danger to the health of any individual, provided that
the licentiate is subsequently provided with the notice and hearing
rights set forth in [s]ections 809.1 to 809.4, inclusive.” (§ 809.5,
subd. (a).)
6
B. Factual Background
1. Peer review efforts of the Medical Staff at
GAMC regarding Asiryan before October 13,
2018
GAMC has in place procedures whereby anyone affiliated
with GAMC (for example, nurses or medical assistants) may submit
a report (referred to as a “RADAR” report) about perceived issues
regarding a physician’s care. Rachel Van Houten, Director of
Medical Staff Services, reviews the reports and forwards them
to the appropriate person to be addressed. Van Houten typically
refers matters involving the quality of a physician’s care to the
chair of that physician’s department. A GAMC “credentials policy”
(capitalization omitted) sets forth the procedures for further
addressing such concerns. The chair of the perinatal / gynecology
department (the department) at the time Asiryan was a member
thereof was Dr. Selena Lantry.
Between 2017 and 2018, Van Houten received between
13 and 15 RADAR reports related to Asiryan from nurses with
whom Asiryan worked. During department meetings regarding
these reports, Asiryan’s colleagues evaluated these cases and
agreed, following a vote, that one of them presented clinical care
concerns. Asiryan was informed of this via a November 2017
“educational letter” that did not require further action on her
part or entail any immediate consequences. In a February 8,
2018 letter, the “Multispecialty Peer Review Committee” informed
Asiryan that it had reviewed four of her cases and identified a
“pattern” of conduct that the committee “scored” as “non-compliant
with medical staff policies” and “process improvement opportunity.”
(Capitalization omitted.) The letter further stated that “in light of
the information received, [the] committee [had] determined that an
7
ongoing evaluation of [Asiryan’s] cases and documentation will be
performed for a period of time until it can be determined that [the]
practice [described in the letter had] discontinued” and informed
Asiryan that “continued instances of non-compliance will be
referred to the Medical Executive Committee for follow-up.”
On February 27, 2018, the department sent Asiryan a letter
informing her that the department had concerns— unrelated to the
practices addressed in the previous letters—regarding another of
her cases and asked Asiryan for a written response to explain her
decision-making.
Around July 11, 2018, Asiryan received a letter from the
department informing her that the department had initiated a
“Focused Professional Practice Evaluation” (FPPE) of Asiryan’s
“procedural and cognitive skills and [her] interpersonal skills and
behavior.” The letter listed eight actions between February 2018
and June 2018 giving rise to the FPPE and explained the FPPE
process would involve an “ad hoc” committee reviewing Asiryan’s
patient records and reporting findings to the department.
Via a September 12, 2018 letter, the chairperson of the
ad hoc committee, Dr. E. Laurence Spencer-Smith, informed
Asiryan that the committee had “reviewed several of [her] cases
and [had] a high level of concern relating not only to patient safety
but also [her] professional demeanor, interpersonal relationships,
and communication with other members of the department and
hospital staff ” (capitalization omitted) as well as about “medical
documentation issues” regarding which she had been previously
admonished. The letter described in detail several cases in which
Asiryan “appear[ed]” to have “deviated from the standard of care
and or may have subjected patients to either adverse outcomes
or near misses.” The letter further informed Asiryan that she was
required to appear before the committee on October 18, 2018 and be
8
prepared to discuss the cases identified, and to submit a written
response.
2. Events of October 13–15, 2018
On October 13, 2018, Asiryan was scheduled to perform
a delivery via Cesarean section (C-section). Lantry was present
for the procedure. The baby was small in size and premature
at 30 weeks gestation. The baby slipped from Asiryan’s hands
and back into the womb several times before it was successfully
delivered. Evidence at trial included varying accounts as to
Asiryan’s demeanor during the delivery—namely, the extent to
which she remained calm or became panicked and anxious—and
as to whether she required Lantry’s assistance to deliver the child.
After delivery, the child required resuscitation, intubation, and
treatment from the Neonatal Intensive Care Unit.
On October 14, 2018, the day after the delivery, Asiryan
had a conversation with Lantry, during which Asiryan stated she
was willing to resign to avoid possible harm to her reputation and
a section 805 report.
On October 15, 2018, Lantry met with the outgoing chief of
staff, Dr. Harlan Gibbs, and Van Houten. At this meeting, Lantry
and Gibbs determined that Asiryan posed an “imminent danger to
patient safety.”
3. October 16, 2018 meeting regarding
Asiryan’s suspension and resignation
On October 16, 2018, Lantry met with Dr. Serineh
Melidonian, the then-acting chief medical officer, Van Houten,
Gibbs, and a GAMC hospital attorney. During this meeting,
the group decided to suspend Asiryan’s medical staff privileges.
Van Houten sent Asiryan a text message later that day instructing
Asiryan to attend a meeting that evening.
9
That evening, Asiryan met with incoming chief of staff
Dr. Lukas Alexanian, Melidonian, Lantry, and Van Houten. The
group informed Asiryan that her behavior during the October 13th
C-section had caused concern about her ability to safely care for
patients, and that as a result, her staff privileges were being
summarily suspended pending an investigation.
What the attendees of this meeting said regarding the
alternative option of Asiryan resigning her privileges, and
what that option would mean in terms of GAMC’s reporting
requirements, was the topic of conflicting testimony at trial.
As noted, a hospital must file a section 805 report with the state
licensing board when a physician resigns from a medical staff
amid an investigation into his or her clinical competency, whereas
temporary suspension of a physician’s privileges need not be
reported unless it remains in effect for longer than 14 days. (§ 805,
subds. (b), (c) & (e).) According to Asiryan, GAMC misrepresented
these reporting requirements to her at the meeting, telling her
that unless Asiryan resigned her staff privileges, GAMC would
summarily suspend her, and that her suspension—but not her
resignation—would result in a section 805 report. According to
Lantry, Melidonian, and Van Houten, however, Lantry informed
Asiryan during the meeting that Asiryan had already been
suspended at the time of the meeting, and that if she voluntarily
resigned, she would be reported to the state medical board.2
2 Van Houten testified in detail about explaining the various
reporting requirements to Asiryan during the meeting. Van Houten
further testified that, in the course of this explanation, Van Houten
told Asiryan that if her summary suspension lasted more than
14 days and was upheld by the Medical Staff, the resulting
section 805 report would need to contain details about the concerns
underlying the suspension, whereas a section 805 report regarding
10
During the October 16 meeting, the group denied Asiryan’s
request that she be permitted 24 hours before her suspension
would go into effect so she could consult a lawyer and decide
whether to resign. Asiryan testified she was not given any
documents during the meeting, nor were any reviewed. At the
conclusion of the meeting, Asiryan stated her decision to resign
her medical privileges at GAMC. She testified at trial, however,
that if she had understood she had a right to contest the summary
suspension, she would have exercised that right. Van Houten typed
a resignation letter at the computer in her nearby office, which
Asiryan then signed.
GAMC then filed a section 805 report with the Medical
Board of California, stating that “[f]ollowing notice of an impending
investigation based on information indicating medical disciplinary
cause or reason” Asiryan had “resigned from the Medical Staff.”
The report further stated that Asiryan “was the subject of an
ongoing investigation concerning issues related to [her] procedural
and cognitive skills” and “based on facts particular and specific
to [her] care and professional conduct and related to medical
disciplinary cause.” GAMC filed a report to the same effect with
the National Practitioner Data Bank.
C. Relevant Procedural History
Asiryan filed suit against GAMC and the Medical Staff based
on her summary suspension and the events surrounding it. She
alleged that GAMC and the Medical Staff had tricked her into
resigning her staff privileges during the October 16, 2018 meeting
by misrepresenting their section 805 reporting obligations. She
a resignation would state merely that Asiryan resigned from the
Medical Staff during a pending investigation.
11
further alleged that GAMC and the Medical Staff had denied
her the due process owed her in connection with her suspension.
On these bases, she asserted causes of action for violation of the
California peer review statute, violation of the common law right
to fair procedure, intentional infliction of emotional distress, and
tortious interference with prospective economic advantage.
1. Pretrial dispositive motions
Defendants demurred to Asiryan’s second amended
complaint arguing, inter alia, that a summary suspension did not
trigger any notice or hearing rights. “[T]he [c]ourt [could not] make
a determination based on the pleadings alone as to whether this
case involved a summary suspension, a resignation, or a final
determination by a peer review body” and on this basis overruled
the demurrer as to all but the economic interference cause of action.
Asiryan filed a third amended complaint, this time omitting
the economic interference claim, and the Medical Staff and GAMC
moved for summary judgment. The court found that Asiryan’s
claims were based solely on conduct by “the Medical Staff, which
is a separate legal entity” from GAMC, and granted summary
judgment to GAMC. In discussing Asiryan’s statutory claim
against the Medical Staff, the court noted that the California
peer review statute “protections are not triggered by a summary
suspension,” and that a summary suspension “does not give
rise to notice and hearing rights described in the statute; rather,
such rights need only be ‘subsequently provided’ to the affected
physician.” The court nevertheless rejected defendants’ argument
that this warranted summary judgment in their favor on Asiryan’s
California peer review statute claim, because the court viewed
that claim as “aris[ing] from [Asiryan’s] allegation[s] that she was
induced to give up her right to a hearing on whether [the] hospital
12
privileges should be terminated or restricted by a representation
made to her by . . . the [Medical Staff] . . . that, if she resigned
voluntarily, [GAMC] would not file a report to the California
Medical Board.” (Underscoring omitted.) Because a factual
dispute existed on this issue, the court denied the summary
judgment motion as to the statutory and common law peer review
claims against the Medical Staff, as well as the intentional infliction
of emotional distress (IIED) claim against them, which the court
likewise characterized as based on this alleged misrepresentation.
2. Pretrial discussions of Asiryan’s legal
theories and related proposed jury
instructions
The parties discussed the nature of Asiryan’s statutory
and common law fair procedure causes of action at length during
pretrial status conferences in ways that are significant for the
issues Asiryan raises on appeal. We therefore summarize these
in some detail.
At multiple conferences, the court stated its view that the
common law of fair procedure did not offer protections beyond
those set forth in the California peer review statute, and that
the only way the Medical Staff may have denied Asiryan those
statutory protections was by allegedly misrepresenting to her the
consequences of her suspension. In the context of discussing jury
instructions and Asiryan’s proposed special verdict form during an
April 16, 2021 conference, the court stated it “[did not] think that
[Asiryan] [had] a [common law of fair procedure] cause of action,”
because “[i]f there is such a cause of action, it’s been superseded in
this particular case by the statutory procedures.” The court further
stated that “the [California peer review] statute itself . . . gives
the exclusive definition of her rights or under the fair procedure
argument” and “permits a summary suspension without a hearing.”
13
In response, Asiryan’s counsel represented to the court
that the “suspension . . . [is] not what the lawsuit is based on.
The violation of her procedural rights is based on what occurred
after that suspension took place, that she was lied to, and she was
tricked into giving up her rights under the code that would have
existed because they lied to her and told her false statements.”
Counsel argued this violated the statute’s notice requirements in
that, after being summarily suspended, Asiryan “need[ed] to be
provided proper notice under her rights of what’s going to happen
and certainly cannot be tricked and lied to about those rights.”
Asiryan described the misrepresentations she claimed were made
to her at the meeting as the Medical Staff both “fail[ing] to notify
[Asiryan] of her rights” and “[lying] to her about her rights.”
At subsequent conferences, however, Asiryan claimed that
other purported defects in the process the Medical Staff afforded
her provided the basis for her peer review claims—namely,
that “the suspension was wrong because it was motivated
by the wrong motive” and that “the procedure [was] wrongful”
“[p]artly” “because they didn’t tell [Asiryan] she’s been temporarily
suspended” and because the Medical Staff did not provide her
with any documentation during the meeting.
At a June 21, 2021 conference, the trial court opined that
Asiryan’s case seemed to be a misrepresentation case, though
it had not been pleaded as such. At a July 30, 2021 status
conference, the court continued to seek clarification on “exactly
what . . . the violation [of section 809]” that Asiryan was alleging
was, if not the misrepresentations regarding notice.
In August 2021, after several rounds of edits, the court
rejected Asiryan’s proposed special jury instructions to the extent
they were inconsistent with the interpretation of the California
peer review statute the court had described during the pretrial
14
conferences: namely, its interpretation of the statute as permitting
summary suspension without a hearing or notice at the time of
the suspension, and its view that the common law did not provide
protections in the hospital peer review context beyond those
provided for in the statute.
3. Motions for nonsuit and leave to amend
complaint
The day before trial began, in the context of continuing
discussions about jury instructions, Asiryan’s counsel represented
to the court that Asiryan “[was] contemplating amending the
complaint to conform to proof for fraud” and offered to prepare
an amendment. The court stated that it was “not going to allow
an amendment now” and that Asiryan was “prejudicing the trial
by changing [her] causes of action.”
The next day, at the end of opening arguments, the Medical
Staff moved for nonsuit on Asiryan’s claim under the California
peer review statute on the basis that Asiryan had not alleged a
violation of that statute, and on her common law claim “as being
duplicative of the [section] 809 claim.” The trial court denied the
motion as to the statutory claim because the court saw a potential
basis for such a claim in the alleged misrepresentations to Asiryan.
It deferred a ruling on the common law claim to avoid the need for
further opening arguments.
On the afternoon of the fourth day of trial, after the defense
had rested its case, Asiryan filed a motion to amend her complaint
to add a cause of action for fraud—specifically, a cause of action
that she was “fraudulently induced to resign,” through which she
would seek “ordinary tort damages” flowing from the “resignation
that she was induced to taking.” The court expressed concern
that Asiryan had not offered evidence to support a claim for such
economic damages. The court denied the motion because it was
15
“untimely,” would “destroy[ ] the trial [the parties] [had] had so
far,” was “not supported by evidence that’s been admitted” and
“fundamentally changed the issues in [the] case.”
The Medical Staff then renewed its motion for nonsuit on
Asiryan’s common law claim. The court granted the motion.
4. Verdict
The jury returned a verdict in the Medical Staff ’s favor on all
claims. In connection with the intentional infliction of emotional
distress claim, the jury specifically found that the Medical Staff
did not “tell Dr. Asiryan during the meeting on October 16, 2018 . . .
that if she resigned her medical staff privileges, the Medical Staff
would not report her resignation to either the Medical Board of
California or the National Practitioner Data Bank.”
Defendants moved for an award of attorney fees. The court
partially granted the motion in a postjudgment order.
Asiryan timely appealed both the judgment and the order
awarding attorney fees. We granted the parties’ joint motion to
consolidate the two appeals for all purposes.
DISCUSSION
On appeal, Asiryan argues the court erroneously concluded
that the California peer review statute provides the sole source of
procedural requirements in the hospital peer review context, and
thus reversibly erred when, based on this conclusion, the court
granted a nonsuit on her common law claim and rejected certain of
her proposed jury instructions. She further argues that the court
abused its discretion in denying her leave to amend her complaint
to include a fraud claim, and in awarding defendants attorney fees.
We address each of these arguments in turn below.
16
A. The Trial Court Correctly Interpreted the
California Peer Review Statute and Did Not
Err When, Based Thereon, It Rejected Asiryan’s
Jury Instructions and Granted a Nonsuit on
Her Common Law Claim
1. In the hospital peer review context, the
common law of fair procedure does not
require additional protections beyond
those in the California peer review statute
Asiryan’s argument that the court incorrectly interpreted
the intersection between the California peer review statute and
the common law of fair procedure presents a legal issue we review
de novo.
“A hospital’s duty to provide certain protections to a physician
in proceedings to deny staff privileges was grounded originally in
the common law doctrine of fair procedure.” (El-Attar v. Hollywood
Presbyterian Medical Center (2013) 56 Cal.4th 976, 986 (El-Attar).)
Generally summarized, this broadly-applicable doctrine provides
that “judicial intervention in a private association’s membership
decisions is warranted ‘ “where the considerations of policy
and justice [are] sufficiently compelling” ’ [citations] [and that]
‘[w]henever a private association is legally required to refrain from
arbitrary action, the association’s action must be both substantively
rational and procedurally fair.’ [Citation.]” (Ibid., quoting Pinsker
v. Pacific Coast Society of Orthodontists (1974) 12 Cal.3d 541, 550
(Pinsker).) Courts began applying this broad doctrine in the context
of hospital credentialing and peer review decisions in the late
1970s. (See Anton v. San Antonio Community Hospital (1977) 19
Cal.3d 802, 815 [“a physician may neither be refused admission to,
nor expelled from, the staff of a hospital, whether public or private,
in the absence of a procedure comporting with the minimum
17
common law requirements of procedural due process,” italics
omitted]; see also El-Attar, supra, at p. 987.)
In 1989, “[t]he Legislature . . . codified the common law
fair procedure doctrine in the hospital peer review context by
enacting . . . [the California peer review statute].” (El-Attar,
supra, 56 Cal.4th at p. 988.) Our state Supreme Court summarized
the circumstances and purpose of this codification as follows: the
California peer review statute was “passed in response to the
federal Health Care Quality Improvement Act of 1986 [HCQIA]
(42 U.S.C. §§ 11101–11152), which provides immunity from money
damages for peer review actions taken in compliance with the
[HCQIA’s] requirements. . . . [the California peer review statute]
established the minimum procedures that hospitals must employ
in certain peer review proceedings. [Citations.] . . . [T]he ‘primary
purpose of the peer review process’ codified in this legislation is
‘to protect the health and welfare of the people of California by
excluding through the peer review mechanism “those healing
arts practitioners who provide substandard care or who engage
in professional misconduct.” (§ 809, subd. (a)(6).)’ [Citation.]
A second purpose of the legislation, which is ‘also if not equally
important, is to protect competent practitioners from being barred
from practice for arbitrary or discriminatory reasons.’ [Citation.]
[¶] Thus, [California’s] peer review statute, like the common law
fair procedure doctrine that preceded it, ‘establishes minimum
protections for physicians subject to adverse action in the peer
review system.’ [Citation.] The statutory scheme guarantees,
among other things, a physician’s right to notice and a hearing
before a neutral arbitrator or an unbiased panel.” (El-Attar, supra,
at p. 988.)
Asiryan contends that “the common law right of fair
procedure remains a separate and viable claim for a physician
18
against a hospital and its medical staff, regardless of the enactment
of [the California peer review statute], and either or both claims
may be pursued at the physician’s election.” This is significant for
Asiryan’s claims, because, according to Asiryan, the common law
affords broader protections than the statute, which the Medical
Staff denied her.
Asiryan points to authority that “where a statutory remedy
is provided for a preexisting common law right, the newer remedy
is generally considered to be cumulative, and the older remedy
may be pursued at the plaintiff ’s election.” (Rojo v. Kliger (1990)
52 Cal.3d 65, 79.) As Asiryan acknowledges, however, this
“general rule” does not apply where “it appears that the Legislature
intended to cover the entire subject” of the statute via “ ‘general and
comprehensive legislation.’ ” (Id. at p. 80; see Justus v. Atchison
(1977) 19 Cal.3d 564, 574 (Justus) [“[t]here are two alternatives:
either the Legislature meant to deal with only the narrow issue
specifically addressed in the statute, leaving to the courts the
task of filling such gaps in the law as may remain; or it intended
to regulate the entire question itself—to ‘occupy the field’—
thus cutting off all future judicial initiative”], disapproved of
on other points by Ochoa v. Superior Court (1985) 39 Cal.3d
159 and Shalabi v. City of Fontana (2021) 11 Cal.5th 842; accord,
Environmental Law Foundation v. State Water Resources Control
Bd. (2018) 26 Cal.App.5th 844, 863–864.)
For at least two reasons, we conclude the California peer
review statute is such general and comprehensive legislation
“ ‘indicat[ing] a legislative intent that the statute should totally
supersede and replace the common law dealing with the subject
matter.’ [Citation.]” (I. E. Associates v. Safeco Title Ins. Co. (1985)
39 Cal.3d 281, 285 (I. E. Associates).) First, the Legislature itself
described the law as creating not just a handful of procedural
19
rights, but an entire medical “peer review system” for California.
(See § 809, subd. (a)(2), italics added.) Our state Supreme Court
and Courts of Appeal have accordingly characterized the statute
as doing this as well, and in a “ ‘comprehensive’ ” manner.
(Natarajan v. Dignity Health (2021) 11 Cal.5th 1095, 1103
(Natarajan) [“[w]hen the Legislature enacted the peer review
statute in 1989, it both codified the peer review process and
made peer review ‘part of a comprehensive statutory scheme for
the licensure of California physicians’ ”], quoting Mileikowsky v.
West Hills Hospital & Medical Center (2009) 45 Cal.4th 1259, 1267
(Mileikowsky); accord, Unnamed Physician, supra, 93 Cal.App.4th
at p. 616 [through the California peer review statute, “California
chose to design a peer review system of its own”]; see also Powell v.
Bear Valley Community Hospital (2018) 22 Cal.App.5th 263, 273
[“[t]he peer review process is codified at . . . section 809 et seq. and
is a part of the ‘comprehensive statutory scheme for the licensure
of California physicians’ required to be included in the medical
staff bylaws of acute care facilities,” fn. omitted].) The intent of
creating a peer review system for California is most consistent with
an “inten[t] to regulate the entire question [of medical peer review]
itself—to ‘occupy the field.’ ” (Justus, supra, 19 Cal.3d at p. 574;
see also McMillin Albany LLC v. Superior Court (2018) 4 Cal.5th
241, 249 [“abrogation of the common law does not require an
express declaration” to that effect].)3 Asiryan argues that “the
3 Asiryan counters that “[t]here [is] no indication whatsoever
of any Legislative intent to repeal the much broader common
law right of fair procedure that applies to private organizations
generally.” (Italics omitted.) We agree, but whether the entirety
of the common law of fair procedure survives the enactment of
the California peer review statute is not the salient question for
our purposes. Rather, we need only concern ourselves with the
20
reason for the enactment of [the California peer review statute]
was to ‘opt out’ of the [HCQIA].” This is a semantic distinction,
because the Legislature stated its intent to opt out of the HCQIA
by creating California’s own peer review system in this particular
factual context. (§ 809, subd. (a)(2) [“[b]ecause of deficiencies in the
[HCQIA] . . . it is preferable for California to ‘opt-out’ of the federal
act and design its own peer review system,” italics added]; § 809,
subd. (a)(9)(A) [“California exercises its right to opt out of specified
provisions of the [HCQIA] relating to professional review actions,”
“because the laws of this state provide a more careful articulation
of the protections for both those undertaking peer review activity
and those subject to review, and better integrate public and private
systems of peer review”].)
Second, the “ ‘[g]eneral and comprehensive’ ” (I. E. Associates,
supra, 39 Cal.3d at p. 285) nature of the California peer review
statute is evident in the detail with which it addresses the process
required in connection with hospital peer review procedures.
For the purposes of determining whether legislation replaces the
common law, “ ‘[g]eneral and comprehensive legislation’ ” is that in
which “ ‘course of conduct, parties, things affected, limitations and
exceptions are minutely described.’ ” (Ibid. [involving legislation
on nonjudicial foreclosure of deeds of trust]; accord, Pacific Scene,
Inc. v. Peñasquitos, Inc. (1998) 46 Cal.3d 407, 411 [involving
legislation on corporate dissolution]; see Justus, supra, 19 Cal.3d
at pp. 574–575 [involving legislation on recovery for wrongful
portion of this broad area of the common law addressing hospital
peer review. And the Legislature’s stated desire to create a
comprehensive peer review system reflects an intent to replace
this portion of the common law. (See El-Attar, supra, 56 Cal.4th at
p. 988 [section 809 “codified the common law fair procedure doctrine
in the hospital peer review context”].)
21
death]; Flores v. Los Angeles Turf Club (1961) 55 Cal.2d 736, 746
[legalized horse racing and wagering].)
This is the case with the California peer review statute,
which methodically delineates specific and detailed procedural
requirements for each step of a peer review proceeding.4 (See
Natarajan, supra, 11 Cal.5th at pp. 1103–1104 [summarizing
several of these procedures].) These requirements address initial
investigations and information sharing (§§ 809.05, 809.08); the
notice of action and hearing rights (§ 809.1); voir dire of hearing
4 For example, as to the hearing itself, the statute requires,
inter alia, that “[t]he hearing shall take place before a trier of fact
who is either (1) an arbitrator or arbitrators selected through a
mutually acceptable process, or (2) a panel of fellow practitioners
including, where feasible, a member who practices the same
specialty as the physician. ( . . . § 809.2, subd. (a) . . . .) [¶] When
the hearing is held before a peer review panel, a hearing officer
may be appointed to preside. ( . . . § 809.2, subd. (b) . . . .) Unlike
the members of the panel, the hearing officer need not be a medical
practitioner; often the hearing officer is a lawyer. If a hearing
officer is selected, the hearing officer is tasked with making
procedural and evidentiary decisions, including ruling on requests
for access to information, requests for continuances, and challenges
to the impartiality of the panel members or hearing officer.
( . . . § 809.2, subds. (c)–(h).) The hearing officer may not, however,
vote on the outcome; the ultimate decision is left exclusively to
the panel. ( . . . §§ 809.2[, subd.] (b), 809.4, subd. (a)(1).) [¶] The
statute provides that hearing officers and panel members alike
‘shall gain no direct financial benefit from the outcome.’ (§ 809.2[,
subds.] (a) & (b).) The physician may question the panel members
and hearing officer on voir dire, and has ‘the right to challenge
the impartiality of any member or hearing officer.’ ( . . . § 809.2,
subd. (c).) The hearing officer, if one has been selected, is
responsible for ruling on such challenges.” (Natarajan, supra,
11 Cal.5th at pp. 1103–1104, fn. omitted.)
22
panel members and officers (§ 809.2, subds. (a)–(c)); discovery
rights (§ 809.2, subds. (d)–(f)); the manner in which the hearing
shall be conducted, including the burdens of proof (§ 809.3,
subds. (a)–(b)); and, finally, the parties’ rights upon completion
of the hearing (§ 809.4). It would make little sense for the
Legislature to so comprehensively address the issue of hospital
peer review notice and hearings—down to such details as, for
example, the composition of the hearing tribunal and specific
timing requirements for notice—yet also intend for broad
principles of fairness under the common law of fair procedure to
provide for additional requirements. (See Flannery v. Prentice
(2001) 26 Cal.4th 572, 578 [in interpreting statutory language,
a court must “avoid any construction that would produce absurd
consequences”].)
Finally, the statute also commissions a study to develop
recommendations for improving the “overall effectiveness and
efficiency” of the “section 809 hearing process” (§ 805.2, subd. (c)(8);
see § 805.2), which further supports that the Legislature intended
legislative action informed by such studies, rather than the common
law, to fill in any gaps that might exist in the statutory procedural
guarantees.
In these ways, the Legislature’s stated intent in enacting
the California peer review statute—to create a comprehensive
system for peer review of medical staff at hospitals and other
medical facilities—and the detailed manner in which the statute
creates such a system, are inconsistent with a view that the
“Legislature meant to . . . leav[e] to the courts the task of filling
such gaps in the law as may remain.” (Justus, supra, 19 Cal.3d
at p. 574.) For these reasons, we conclude that the California
peer review statute replaces, rather than supplants, the due
process guarantees of the common law of fair procedure in
23
the specific factual context of the due process owed a licensed
physician subject to peer review investigative and disciplinary
actions.
2. Asiryan’s arguments to the contrary
are unpersuasive
In arguing to the contrary, Asiryan points to language
in some cases describing the California peer review statute
as “ ‘essentially’ codif[ying]” the common law of fair procedure,
and argues that use of the qualifier “essentially” leaves room
for common law rights to supplement the statutory rights. As a
threshold matter, our Supreme Court has referred to the statute as
“codif[ying]” the common law in this context, without employing any
qualifier. (El-Attar, supra, 56 Cal.4th at p. 988 [“[t]he Legislature
subsequently codified the common law fair procedure doctrine in
the hospital peer review context by enacting . . . sections 809 to
809.8 in 1989”].) More importantly, Asiryan’s argument focuses
on semantics and ignores that the reasoning and holdings of the
cases in which such “essentially codified” language appear do not
support Asiryan’s position. Indeed, none of them even considers the
intersection between the common law doctrine of fair procedure and
the California peer review statute.5 (See Sahlolbei v. Providence
Healthcare, Inc. (2003) 112 Cal.App.4th 1137 (Sahlolbei) [discussed
5 To the extent the use of the word “essentially” here is of
any significance, the far more likely explanation in light of the case
law and context in which the word appears is that the California
peer review statute created many of the specific details for peer
review due process procedures lacking in the general principles
of the common law of fair procedure, but drew from those general
principles, and in that sense “essentially” codified the common law
in this context.
24
below]; Weinberg v. Cedars-Sinai Medical Center (2004) 119
Cal.App.4th 1098, 1106–1108; id. at p. 1108 [interpreting
section 809.5, which “places a boundary on a [medical facility]
governing body’s role in the peer review process,” and the
appropriate level of deference the body must show to the decisions
of bodies].) In one such case, Sahlolbei, supra, for example,
although a physician’s “complaint alleged in part that defendants
had failed to provide him with a pretermination hearing as required
by section 809.1 and the common law right of fair procedure”
(Sahlolbei, supra, at p. 1155), the court analyzed this issue solely
in terms of compliance with the plain meaning of the statute (see
id. at pp. 1146–1152 & 1156).
That appellate decisions sometimes refer to the California
peer review statute as setting forth “minimum” standards also
does not imply a continuing role for the common law doctrine of
fair procedure in the context of hospital peer review, as Asiryan
suggests on appeal. (See, e.g., El-Attar, supra, 56 Cal.4th at
p. 988 [“[t]hus, the peer review statute, like the common law
fair procedure doctrine that preceded it, ‘establishes minimum
protections for physicians subject to adverse action in the
peer review system’ ”], quoting Mileikowsky, supra, 45 Cal.4th
at p. 1268.) The statutory requirements are “minimums” in
the sense that “[t]he statute also permits hospitals to establish
procedural protections above and beyond the minimum
requirements specifically set out in the code”—not in the sense
that other sources of California law require them to do more.
(El-Attar, supra, at p. 988; accord, Mileikowsky, supra, at p. 1274;
see § 809.6, subds. (a) & (b) [“[t]he parties are bound by any
additional notice and hearing provisions contained in any applicable
professional society or medical staff bylaws” and “any applicable
agreement or contract between the licentiate and peer review body
25
or health care entity” that “are not inconsistent with” the specific
procedures mandated by the code].)
Finally, we do not find persuasive Asiryan’s argument
that because some decisions discuss both the common law of fair
procedure and statutory protections, or reference claims under
both, the common law provides an independent source of additional
protections. The California peer review statute created specific
procedures in the context of hospital peer review that derive from
the common law fair procedure right, so it stands to reason that
courts will have occasion to discuss the latter in interpreting
or applying the former. Some of the cases Asiryan cites do no
more than this. (See, e.g., El-Attar, supra, 56 Cal.4th at p. 988
[discussing the history of the statute and the common law from
which it partially derives in interpreting the statute].)
Nor do any of these cases address whether—let alone hold
that—the common law of fair procedure is a source of additional
procedural guarantees beyond what the statute provides in the
context of hospital peer review. (See, e.g., Sahlolbei, supra, 112
Cal.App.4th 1137 [discussed above].) The primary case on which
Asiryan relies in this regard—Economy v. Sutter East Bay Hospitals
(2019) 31 Cal.App.5th 1147 (Economy)—involves a lawsuit in which
the plaintiff purported to allege claims under both section 809.1
and the common law. (Economy, supra, at p. 1155.) But the
issue presented in that case did not require the Court of Appeal to
consider the extent to which the common law presented a viable,
separate common law claim. Rather, the issue presented in
Economy was whether the plaintiff physician’s “statutory notice and
hearing rights were . . . triggered [when] he was terminated by . . .
his employer”—a hospital-affiliated entity that was not a “ ‘peer
review body’ ” as defined by the statute—“and not by the hospital,”
its medical executive committee, or medical staff, all of which are
26
peer review bodies obligated to comply with the statute. (Id. at
p. 1158.) The Court of Appeal agreed that the plaintiff physician’s
rights under the statute had been triggered, noting that to conclude
otherwise would allow “ ‘a hospital [to] effectively avoid complying
with the notice and hearing requirements of sections 805 and 809
by simply relying on its contracts with third-party employers as
a way to terminate the services of physicians whenever a hospital
administrator determines there is a medical disciplinary reason.’ ”
(Economy, supra, at p. 1158.) In substance, Economy affirmed
judgment for the plaintiff because the hospital had failed to comply
with the hearing requirements of the statute—not any requirements
imposed by the common law. Namely, it explained that, under
the unique circumstances of the case, when the hospital-affiliated
employer terminated the physician, the hospital’s medical staff
necessarily must have also revoked his privileges at the hospital,
an act triggering statutory hearing and notice obligations, with
which neither the hospital nor its staff had complied. (Id. at
pp. 1158–1159.) On this basis, the court concluded that “the trial
court [had] properly determined that the hospital violated [the]
plaintiff ’s statutory and common law right to due process by
substantially restricting his medical privileges without notice
and a hearing.” (Id. at p. 1160.)
In its statutorily-focused reasoning, the court notes in
passing that “[m]oreover, a physician retains a common law right
to fair procedure where the hospital’s act significantly impairs the
physician’s practice of medicine. (Potvin v. Metropolitan Life Ins.
Co. (2000) 22 Cal.4th 1060, 1072–1073 . . . [Potvin].)” (Economy,
supra, 31 Cal.App.5th at p. 1159.) But the court does not state—
nor did it necessarily imply, given the rest of the basis it provides
for its holding—that this common law right extends beyond the
procedures set forth in the California peer review statute. Nor do
27
we read the court’s language in this regard as implying dicta so
stating. Moreover, the sole case Economy cites for this proposition,
Potvin, addresses the obligations of health insurers that are not
covered by the California peer review statute, so the interplay
between that statute and the common law was likewise not at issue
in Potvin. (Potvin, supra, at p. 1072 [affirming judgment in which
Court of Appeal had concluded the California peer review statute
did not apply, and holding that under the common law of fair
procedure, “when establishing standards for removal of physicians
from its [health care insurer] preferred provider lists . . . such
removal must be ‘both substantively rational and procedurally
fair’ ”].)
Thus, Economy neither considered, nor resolved any question
necessarily involving, the question of whether the common law of
fair procedure imposes additional due process rights on a hospital
or its staff beyond those set forth in the California peer review
statute.
3. The court properly rejected Asiryan’s jury
instructions
The trial court’s rejection of Asiryan’s special instructions
presents an issue of law that we review de novo. (Cristler v.
Express Messenger Systems, Inc. (2009) 171 Cal.App.4th 72, 82.)
Asiryan argues in her opening brief that the court incorrectly
rejected her “last amended proposed instructions” which were filed
with the court on August 2, 2021. In her reply brief, she discusses
the court’s rejection of earlier proposed special instructions, which
she filed in April 2021. Either set of instructions, however, provides
an inaccurate summary of her notice and hearing rights under
the California peer review statute and the common law of fair
procedure, for the reasons set forth above. Specifically, all of these
proposed instructions incorrectly state that the common law right
28
to fair procedure provides for a cause of action separate and apart
from section 809.1, and this right entitles a physician to notice and
a fair opportunity to be heard before a medical staff implements
a summary suspension. The April 2021 instructions go one step
further and state that the peer review statute also requires that a
physician be informed of her notice and hearing rights at the time
of a summary suspension.
Asiryan also argues the court incorrectly removed any
“[d]iscussion of the Economy case” from the instructions, and that
“[w]ithout this context as guidance, the jury was left to puzzle
over the Medical Staff ’s sparse proposed instructions, which were
permitted in full.” But as discussed above, Economy does not
support Asiryan’s view of the case.
The court did not err in rejecting Asiryan’s proposed
instructions.
4. The court properly granted a nonsuit on
Asiryan’s common law claim
A defendant is entitled to a nonsuit where, as a matter of law,
the evidence is insufficient to permit a jury to find in the plaintiff ’s
favor. (Saunders v. Taylor (1996) 42 Cal.App.4th 1538, 1541.) Our
review is de novo. (Ibid.) As discussed above, the court correctly
concluded that the California peer review statute sets forth the
exclusive source of peer review procedural protections Asiryan
could claim. Therefore, the jury could not have found in her favor
on the separate common law cause of action, and the court correctly
granted the nonsuit.
B. The Court Did Not Reversibly Err in Denying
Asiryan Leave To Amend To Add a Fraud Claim
The denial of a motion for leave to amend is reviewed for
abuse of discretion. (Branick v. Downey Savings & Loan Assn.
29
(2006) 39 Cal.4th 235, 242.) A lack of diligence in offering an
amendment is grounds to deny a motion for leave to amend and
is an “appropriate matter[ ]” for us to consider in evaluating the
court’s exercise of discretion. (Roemer v. Retail Credit Co. (1975)
44 Cal.App.3d 926, 939–940.) Despite the court suggesting multiple
times in multiple pretrial conferences that Asiryan’s case was more
a misrepresentation case than a peer review case, Asiryan waited
until the day before trial, after the jury had been impaneled, to
announce she was “contemplating amending the complaint” to
plead a claim for fraud. And Asiryan did not file her motion for
another several days after that, nor did she raise the issue again
until after both sides had rested their cases. Based solely on her
lack of diligence in pursuing the desired amendment, the court
acted within its discretion when it denied Asiryan leave to amend.
Even if the court had abused its discretion in denying
leave to amend, however, any such error would not have been
prejudicial. The jury specifically found that the Medical Staff had
not misrepresented the staff ’s section 805 reporting obligations to
Asiryan during the October 16, 2018 meeting. Because Asiryan’s
proposed theory of fraud was that this exact same purported
misrepresentation fraudulently induced her to resign, even if she
had been permitted to present her fraud claim, the jury would have
rejected it.
The court did not reversibly err in denying Asiryan leave to
amend her claim.
C. Attorney Fees
1. The court’s ruling on attorney fees
Following entry of judgment, the court granted GAMC
and the Medical Staff ’s motion to recover attorney fees pursuant
to the attorney fees provision of the California peer review statute,
30
section 809.9. That section requires the court to “award to a
substantially prevailing party the cost of the suit, including a
reasonable attorney’s fee, if the other party’s conduct in bringing,
defending, or litigating the suit was frivolous, unreasonable,
without foundation, or in bad faith.” (§ 809.9.)
The court noted that “[m]uch attorney time was spent in
attempting to bridge the contradiction in [Asiryan’s] pleading:
If the Medical Staff complied with [the statute] in placing [her]
privileges on temporary suspension, how could it be liable for
a denial of fair procedure at common law? [Asiryan] eventually
argued that section 809.5 was ‘vague’ and therefore the jury could
amend it by imposing an additional notice requirement.” The
ruling further notes that “[t]he litigation was also protracted by
[Asiryan’s] assertion that the action taken against her . . . had
an anti-competitive motivation” when “[n]o credible evidence
was provided for this accusation.”
The court awarded two-thirds of the requested fee amount
on the basis that defendants were entitled to fees for work on only
two of the three causes of action. Namely, the court concluded the
defendants had not established a sufficient connection between
Asiryan’s claim for IIED and the peer review issues governed by the
California peer review statute to justify an award of fees for work
on the IIED claim. The final award amounted to $237,938.25 to the
Medical Staff and $84,867.75 to GAMC.
2. The court erred in awarding attorney fees to
the Medical Staff based on Asiryan pursuing
a peer review theory the court had earlier
deemed tenable
Asiryan contends the court erred in concluding fees were
appropriate under section 809.9, because her “conduct in bringing,
defending, or litigating the suit” was not, as the statute requires,
31
“frivolous, unreasonable, without foundation, or in bad faith.”
(§ 809.9.) Whether an action is “frivolous,” “unreasonable,” or
“without foundation” under a statute authorizing an award of
costs or attorney fees presents a question of law we review de novo
where, as here, the pertinent facts are not in dispute. (Smith v.
Selma Community Hospital (2010) 188 Cal.App.4th 1, 7 & 30–33
(Smith).) In analyzing this issue, courts employ the objective
standard applicable to sanctions statutes, which looks to what a
hypothetical reasonable attorney would do under the circumstances.
(Id. at pp. 32–33 [in reviewing an award of attorney fees under
section 809.9, the court “conduct[ed] an independent review . . .
appl[ying] the any-reasonable-attorney standard as a matter of
law” and “[i]f the conduct in question meets this standard, then
the record also would contain substantial evidence supporting a
finding of fact that the conduct was reasonable”]; see Mir v. Charter
Suburban Hospital (1994) 27 Cal.App.4th 1471, 1485 [“[b]ecause
section 809.9 contains the same type of language as these other
[sanctions] statutes, it is more appropriately construed as a
sanctions measure specifically applicable to suits challenging
medical peer review decisions”].) “[A] matter is frivolous if any
reasonable attorney would agree it is completely without merit in
the sense that it lacks legal grounds, lacks an evidentiary showing,
or involves an unreasonable delay.” (Smith, supra, at p. 33.) “A
claim is factually frivolous if it is ‘not well grounded in fact’ and
it is legally frivolous if it is ‘not warranted by existing law or a
good faith argument for the extension, modification, or reversal
of existing law.’ [Citation.]” (Peake v. Underwood (2014) 227
Cal.App.4th 428, 440 (Peake); Smith, supra, at p. 40 [approving
of section 809.9 analysis applying this definition].) An action is
“without foundation” if there is no direct or circumstantial evidence
supporting the plaintiff ’s factual assertions, or if there is no statute,
32
regulation, case law, or other legal authority supporting
the plaintiff ’s legal contentions. (Smith, supra, at pp. 30–31.)
The terms “frivolous,” “unreasonable,” and “without foundation”
partially overlap. To determine whether an action may be
described by any one of them, a court must assess the grounds
underlying the plaintiff ’s factual or legal positions and the
reasoning process linking those grounds to the ultimate conclusions
advocated by the plaintiff. (See id. at p. 33.)
Asiryan argues her section 809 claim against both the
Medical Staff and GAMC was based on a reasonable extension of
the principles set forth in Economy, because “Economy is authority
for the proposition that attempts to indirectly and underhandedly
circumvent the spirit of . . . section 809, while technically complying
with the letter of the statute, provides a basis for a statutory
action.” (Italics omitted.) We disagree that Economy stands for this
proposition, and instead interpret it as set forth in our discussion
of that case above. (See Discussion ante, part A.2.) Indeed, we
struggle to see any basis for Asiryan’s peer review claims, as she
did not establish the Medical Staff or GAMC failed to comply with
any of the statutory requirements, and the common law cannot
provide a source of additional common law guarantees.
This notwithstanding, we cannot fairly deem it unreasonable
for Asiryan to have proceeded to trial with her peer review claims
against the Medical Staff, given the court’s earlier rulings rejecting
defendants’ efforts, via summary judgment and nonsuit motions,
to dispose of the claims as inherently deficient.
In ruling on these motions, the court rejected challenges
to Asiryan’s peer review claims against the Medical Staff despite
noting some of the same deficiencies it later relied on in granting
the fee motion: that there existed no separate common law cause
of action, and that the Medical Staff had complied with all the
33
statutory and notice requirements. The court twice rejected the
latter argument as a basis for disposing of the statutory claim,
explaining that the court saw the possibility of a statutory claim
against the Medical Staff based on the alleged misrepresentations
to Asiryan regarding the Medical Staff ’s reporting obligations if
Asiryan resigned as opposed to her being summarily suspended.
Asiryan then proceeded to trial against the Medical Staff, arguing
that “[t]his case is about hospital medical staff lying to and tricking
[her] into giving up her rights to practice at a medical institution”
which conduct “was a violation of both the letter and the spirit
of . . . Asiryan’s rights.”
Of course, if the summary judgment or nonsuit motion were
denied based on evidence later revealed to have been falsified or
inaccurately described in connection with the summary judgment
or nonsuit motions, a subsequent finding that the claims were
unreasonable or without basis might be consistent with the
claims having survived summary judgment. (See Rosenman v.
Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro (2001)
91 Cal.App.4th 859, 866 [“[W]e decline to establish a bright-line
rule whereby a plaintiff who survives a motion for summary
judgment or nonsuit can never be liable for attorney fees. Such a
rule would unjustifiably shield those plaintiffs who are able to raise
a triable issue of fact . . . by means of fabricated evidence and false
testimony. If the false and unfounded nature of such a plaintiff ’s
claims is revealed at trial, the prevailing defendant should be
able to recoup its attorney fees”].) But the court did not find that
Asiryan falsified or mischaracterized evidence, nor do defendants
argue she did.
Here, the court expressly permitted Asiryan to move forward
with her peer review claims against the Medical Staff on a theory
focusing on the Medical Staff misrepresenting its reporting
34
requirements. The court also repeatedly expressed skepticism
about this legal theory. But precisely because the court expressed
skepticism about the legal viability of Asiryan’s peer review claims
against the Medical Staff, yet denied motions to dispose of them on
this basis, a hypothetical reasonable attorney could conclude that
the claims were “ ‘warranted by . . . a good faith argument for the
extension, modification, or reversal of existing law’ ” (Peake, supra,
227 Cal.App.4th at p. 440; see Smith, supra, 188 Cal.App.4th at
p. 39) and were thus tenable.
The same is not true regarding Asiryan’s claims against
GAMC. The trial court correctly granted summary judgment in
GAMC’s favor on those claims, ruling that GAMC had not taken
any of the actions that Asiryan alleged reflected violations of
the common law and California peer review statute. Moreover,
for the reasons discussed above, we reject Asiryan’s contention
that Economy, supra, 31 Cal.App.5th 1147, provides a basis for
extending either body of law to nevertheless support a tenable
claim against GAMC based on the Medical Staff ’s actions.
We therefore reverse the fee order to the extent it awards
fees to the Medical Staff.
35
DISPOSITION
The judgment is affirmed. The order awarding attorney fees
is reversed to the extent it awards the Medical Staff fees and costs.
The parties shall bear their own costs on appeal.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
WEINGART, J.
36