Soderling v. Office Of The Attorney Gen. Of Cal.

Decision Date22 October 2010
Docket NumberA124931,No. RG08374245,A124196,RG08374245
PartiesERIC M. SODERLING, Plaintiff and Appellant, v. OFFICE OF THE ATTORNEY GENERAL OF CALIFORNIA, et al., Defendants and Respondents.
CourtCalifornia Court of Appeals Court of Appeals

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

INTRODUCTION

In these consolidated appeals, Eric Soderling seeks to overturn the trial court's partial grant of an anti-SLAPP motion (Code Civ. Proc., § 425.16)1 in favor of respondents and to overturn or reduce the award of attorney fees to respondents.

In 2006, the Medical Board of California (Medical Board) revoked appellant's license to practice medicine. After that revocation decision became final, appellant filed the instant action against the Office of the Attorney General; Deputy Attorneys General Jane Zack Simon and Beth Faber Jacobs, individually and in their official capacities; and Medical Board senior investigators Teri Bennett and Charles McCort, individually and in their official capacities. (The Medical Board is not a party to this action.) The crux ofappellant's claim was that respondents violated court orders that, pursuant to Penal Code section 851.8, respondents were to consider appellant's previous 1987 arrest and conviction (sometimes referred to herein as the "1987 incident") as having not occurred, were to seal and destroy their records of the incident, and were to advise the Medical Board to destroy all references to that incident in its records. Appellant further claimed that this violation of both the statute and court orders influenced the initiation and pursuit of the medical license revocation action against him, denying him a fair hearing in that proceeding. Appellant's "Verified First Amended Petition for Writ of Mandate; Complaint" (writ petition/complaint) sought an order requiring respondents to comply with the previous court orders, enjoining further violations, and declaring that respondents had violated his constitutional rights. He also sought damages and attorney fees. Respondents countered with an anti-SLAPP motion under section 425.16, seeking dismissal of all causes of action. The trial court denied appellant's request for relief from the stay of discovery pending determination of the motion. (§ 425.16, subd. (g).) The trial court partially granted the special motion to strike, striking eight of the writ petition/complaint's 10 causes of action. The court awarded respondents attorney fees. (§ 425.16, subd. (c).) Appellant timely appealed the order granting in part the antiSLAPP motion (A124196), and the order awarding attorney fees (A124931).2

Appellant contends: (1) respondents' anti-SLAPP motion was erroneously granted as respondents' asserted protected speech was illegal, and therefore unprotected under the anti-SLAPP statute; (2) assuming the speech was not illegal, appellant still met his burden of showing a prima facie case of probability of success on the merits; (3) the court erroneously denied his request to conduct discovery during the pendency of the anti-SLAPP motion; (4) the court erroneously denied appellant's request for a continuance of the anti-SLAPP motion to allow him to conduct and complete discovery in his separate action against the Medical Board in Sacramento; and (5) the court abusedits discretion in awarding attorney fees for time spent on the motion by respondent Deputy Attorneys General Jacobs and Simons.

FACTS AND PROCEDURAL BACKGROUND
A. Penal Code Section 851.8 and Related Orange County Superior Court Orders

In 1987, appellant was arrested and convicted of drug-related crimes. Appellant entered into a plea bargain and was placed on probation for five years. Upon successfully completing that term in 1992, the plea was set aside and the matter was dismissed under Penal Code section 1203.4. In June 1997, appellant moved under Penal Code section 851.8 to withdraw his earlier guilty plea, to have the accusation dismissed, and to have his records sealed. On June 6, 1997, at appellant's request and with the district attorney's concurrence, Orange County Superior Court Judge David O. Carter issued an order under Penal Code section 851.8, directed to the Attorney General and others, ordering "that all records of this arrest be sealed forthwith and Five (5) years from the date of arrest, be destroyed." The order further stated that appellant and all others must "consider the sealed incident as having not occurred."

On February 20, 1998, apparently agreeing with the Attorney General's suggestion that appellant did not qualify to have his records sealed under Penal Code section 851.8, Orange County Superior Court Judge Kazuharu Makino vacated the court's prior sealing order. Thereafter, appellant applied to the Medical Board for issuance of a license to practice medicine. As he could not rely upon the vacated sealing order, appellant disclosed the 1987 incident on his medical license application. The Medical Board issued appellant an unrestricted medical license in 1999, and he practiced medicine from that time until 2006.

On June 28, 2001, the Fourth District Court of Appeal, Division Three, granted appellant's petition for a peremptory writ of mandate and ordered the superior court to set aside its February 20, 1998 order vacating the June 6, 1997 sealing order, as an order not subject to collateral attack. (Soderling v. Superior Court (June 28, 2001, G027337) [nonpub. opn.].) On remand, Judge Makino entered two new orders on October 5, 2001.

The first reinstated the 1997 sealing order, ordered appellant's guilty plea withdrawn, adjudged him factually innocent, dismissed the prosecution, and directed that "[p]ursuant to [Penal Code] section 851.8, the Department of Justice is ordered to destroy their records of defendant's arrest and/or conviction" pertaining to the 1987 incident. The second 2001 order, directed to the "Attorney General, State of California Department of Justice, Bureau of Criminal Identification and Information," ordered the Department of Justice "pursuant to the provisions of Penal Code section 851.8, subdivisions (b) and (c)" to "destroy all records of defendant Eric M. Soderling's June, 1987 arrest and/or conviction" and to "request the destruction of any records of the arrest which they have given to any local, state, or federal agency, person or entity."3 Appellant served the 2001 orders on respondent Office of the Attorney General. On December 17, 2001, appellant's counsel sent a letter to the Medical Board, requesting compliance with the court orders.

On April 9, 2002, an analyst with the Medical Board's licensing program responded that the Medical Board had consulted with its legal counsel 4 and "we were advised by counsel that we do not have the authority to expunge and/or destroy records from Dr. Soderling's file as you requested. Although we can't grant your request, we will add the information you provided to Dr. Soderling's file. The documentationprovided verifies that on October 5, 2001, Dr. Soderling was adjudged factually innocent and the prosecution was dismissed."

B. Medical Board License Revocation Proceedings

Two months later, appellant was the subject of a patient complaint alleging unprofessional conduct. The complaint was referred to the Medical Board.

On July 15, 2002, the Medical Board's Office of Investigative Services began an investigation of the patient complaint. Before 2002 and continuing until January 1, 2006, investigations by the Medical Board were conducted independently by the Medical Board. During the time of the Medical Board investigation of complaints relating to appellant, Medical Board investigators were not employed by the Office of the Attorney General and were never under the direction, supervision or control of the Attorney General.5 (Deputy attorneys general were, however, assigned to represent the Medical Board in administrative disciplinary proceedings.)

On February 5, 2003, appellant was interviewed by respondent Medical Board investigator Bennett. The 1987 incident was not discussed at that meeting. However, appellant admitted to a 1995 arrest for solicitation of prostitution. He also claimed that the patient who had lodged the complaint against him told him she would prostitute herself for money. Bennett obtained a copy of appellant's licensing file, which contained documentation of the 1987 incident that had been provided by appellant as part of hislicense application and also contained a copy of the 2001 Orange County Superior Court orders to seal and destroy records of the 1987 incident. Respondent Bennett provided copies of the licensing file containing the description of the 1987 incident to potential expert witness consultants to review the claims against appellant. At the conclusion of the investigation, the matter was referred to the Office of the Attorney General.

Respondent Simon was assigned to represent the Medical Board in the administrative proceeding against appellant. On November 19, 2003, respondents Simon and the Office of the Attorney General drafted a "Petition for Order Compelling Psychiatric Examination (Bus. & Prof. Code, § 820)" on behalf of the Medical Board. The petition referred to the 1987 incident, stating that appellant had "disclosed his past substance abuse history, which included a conviction in 1987 for conspiracy to sell controlled substances. Dr. Soderling had significant history of drug abuse, but he participated in a residential treatment program in 1987 and has a 15 year period of sobriety." The petition did not mention that appellant subsequently had been adjudicated factually innocent. The petition contained the observations of Laura Duskin, M.D., a...

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