Toranto v. Jaffurs, Case No.: 16cv1709–JAH (NLS)

• Decision Date: 20 March 2018
• Docket Number: Case No.: 16cv1709–JAH (NLS)
• Citation: 297 F.Supp.3d 1073
• Court: U.S. District Court — Southern District of California
• Parties: Jason TORANTO, an Individual, Plaintiff, v. Daniel JAFFURS, et. al., Defendants.

297 F.Supp.3d 1073

Jason TORANTO, an Individual, Plaintiff,

v.Daniel JAFFURS, et. al., Defendants.

Case No.: 16cv1709–JAH (NLS)

United States District Court, S.D. California.

Signed March 20, 2018

Filed March 21, 2018

Kenneth M. Fitzgerald, Howard C. Wu, Robert G. Knaier, Fitzgerald Knaier LLP, San Diego, CA, for Plaintiff.

Sandra Lynn McDonough, Joanne Alnajjar Buser, Paul, Plevin, Sullivan & Connaughton LLP, Marilyn R. Moriarty, Lewis Brisbois Bisgaard and Smith, San Diego, CA, Paul Jeffrey Riehle, Dennis Francis Murphy, Sedgwick LLP, San Francisco, CA, Allyson Suzanne Ascher, Laura Lynne Stephan, Sedgwick LLP, Larry T. Pleiss, Pleiss Sitar McGrath Hunter & Hallack, Irvine, CA, for Defendants.

ORDER DENYING IN PART AND GRANTING IN PART DEFENDANTS' MOTIONS TO DISMISS[Doc. Nos. 32, 37]

JOHN A. HOUSTON, United States District Judge

INTRODUCTION

Plaintiff, Jason Toranto, originally filed a complaint on July 1, 2016, and filed a First Amended complaint ("FAC") on August 15, 2016, for conspiracy in restraint of trade (claim 1), monopoly (claim 2), bad faith professional review (claim 3), retaliation (claims 4 and 5), defamation (claim 6), violation of the Labor Code(claim 7), tortious interference with prospective economic advantage (claim 8), and unfair competition (claim 9).He names Daniel Jaffurs, Amanda Gosman, The Regents of the University of California, Rady Children's Hospital–San Diego, Rady Children's Specialists, Rady Children's Medical Staff, Children's Hospital of Orange County("CHOC") and CHOC Medical Staff as defendants.Plaintiff alleges Defendants conspired to engage in and engaged in illegal, retaliatory, defamatory and anti-competitive conduct against Plaintiff, a pediatric plastic and craniofacial surgeon.SeeDoc. No. 21.

Defendant CHOC and CHOC Medial Staff ("CHOC Defendants") filed an answer to the FAC on August 31, 2016.SeeDoc. 29.Rady Children's Hospital–San Diego, Rady Children's Specialist of San Diego, Rady Children's Medical Staff and Gosman ("Rady Defendants") filed a motion to dismiss the FAC on September 1, 2016.SeeDoc. No. 32.On September 13, 2016, The Regents filed a motion to dismiss the FAC and a joinder in the co-defendants' motions to dismiss, and Jaffurs filed a motion to dismiss the FAC.SeeDoc. Nos. 36, 37.On October 14, 2016, the Rady Defendants and Defendant Jaffurs filed separate motions to strike("anti-SLAPP motions").SeeDoc. No. 41, 42.Thereafter, Defendant The Regents filed a notice of joinder in the motions to strike and Defendant Jaffurs filed a notice of joinder in the Rady Defendants' motion to dismiss.SeeDoc. Nos. 43, 45.On October 24, 2016, Plaintiff voluntarily dismissed The Regents from the action without prejudice.SeeDoc. No. 48.

On October 28, 2016, Plaintiff filed an application seeking leave to conduct discovery relevant to Defendants' anti-SLAPP motions and to continue the hearing and dates to file his opposition.SeeDoc. No. 49.In light of the application, the Court vacated the hearing date and briefing schedule.SeeDoc. No. 51.Plaintiff's application for leave to conduct discovery was referred to the Honorable Nita L. Stormes, United States Magistrate Judge.

Plaintiff filed a response to Defendant Jaffurs' motion to dismiss and the Rady Defendants' motion to dismiss on November 2, 2016.SeeDoc. Nos. 58, 59.Defendants filed replies in support of their motions.SeeDoc. No. 61, 62.Thereafter, the Court vacated the hearing date on the motions to dismiss.SeeDoc. No. 63.

On November 23, 2016, Judge Stormes issued an order denying Plaintiff's request not to stay general discovery and granting his request to conduct limited, specific discovery with respect to the claims raised in the anti-SLAPP motions.SeeDoc. No. 64.On January 23, 2017, Defendant filed an application seeking an order setting the motions to dismiss and anti-SLAPPmotions for hearing which Plaintiff opposed.SeeDoc. Nos. 65, 66.The Court denied the motion.SeeDoc. No. 67.

On February 3, 2017, Judge Stormes held a status conference regarding discovery and issued an order, following the conference, lifting the stay on discovery and setting a scheduling order for discovery relating to the anti-SLAPP motions.SeeDoc. No. 71.Plaintiff filed a motion to compel which Judge Stormes granted.See Doc. No. Judge Stormes also set a briefing schedule on the pending motions to dismiss and anti-SLAPP motions.SeeDoc. No. 77.Defendant Jaffurs and the Rady Defendants objected to Judge Stormes' order granting the motion to compel and requested this Court reverse Judge Stormes' order.SeeDoc. Nos. 81.The parties briefed the issue upon order of the Court.SeeDoc. Nos. 84, 85, 86, 87.

On May 2, 2017, Plaintiff filed an application seeking an order vacating the briefing schedule and hearing date on the anti-SLAPP motions pending the resolution of Defendant's objections.SeeDoc. No. 88.The Rady Defendants opposed the application.SeeDoc. No. 89.This Court granted Plaintiff's application and vacated the briefing schedule and hearing date for Defendants' anti-SLAPP motions.Thereafter, the Court vacated the hearing on Defendants' motion to dismiss and took the motions under submission without oral argument.SeeDoc. No. 97.

LEGAL STANDARD

The Rady Defendants and Defendant Jaffurs seek dismissal of the FAC pursuant to Federal Rule of Civil Procedure 12(b)(6).Rule 12(b)(6) tests the sufficiency of the complaint.Navarro v. Block, 250 F.3d 729, 732(9th Cir.2001).Dismissal is warranted under Rule 12(b)(6) where the complaint lacks a cognizable legal theory.Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534(9th Cir.1984);seeNeitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 104 L.Ed.2d 338(1989)(" Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law.").Alternatively, a complaint may be dismissed where it presents a cognizable legal theory yet fails to plead essential facts under that theory.Robertson, 749 F.2d at 534.While a plaintiff need not give "detailed factual allegations,"he must plead sufficient facts that, if true, "raise a right to relief above the speculative level."Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545, 127 S.Ct. 1955, 167 L.Ed.2d 929(2007).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ "Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868(2009)(quotingTwombly, 550 U.S. at 547, 127 S.Ct. 1955 ).A claim is facially plausible when the factual allegations permit "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."Id.In other words, "the non-conclusory ‘factual content,’ and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.Moss v. U.S. Secret Service, 572 F.3d 962, 969(9th Cir.2009)."Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense."Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.

In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the truth of all factual allegations and must construe all inferences from them in the light most favorable to the nonmoving party.Thompson v. Davis, 295 F.3d 890, 895(9th Cir.2002);Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38(9th Cir.1996).However, legal conclusions need not be taken as true merely because they are cast in the form of factual allegations.Ileto v. Glock, Inc., 349 F.3d 1191, 1200(9th Cir.2003);Western Mining Council v. Watt, 643 F.2d 618, 624(9th Cir.1981).When ruling on a motion to dismiss, the Court may consider the facts alleged in the complaint, documents attached to the complaint, documents relied upon but not attached to the complaint when authenticity is not contested, and matters of which the Court takes judicial notice.Lee v. City of Los Angeles, 250 F.3d 668, 688–89(9th Cir.2001).If a court determines that a complaint fails to state a claim, the court should grant leave to amend unless it determines that the pleading could not possibly be cured by the allegation of other facts.SeeDoe v. United States, 58 F.3d 494, 497(9th Cir.1995).

DISCUSSION

I. RadyDefendants' Motion to Dismiss

Defendants move to dismiss all causes of action asserted against them, namely, the first, second, third, sixth, eighth and ninth claims.Defendants argue (A)the state law causes of action are premature, (B)Plaintiff fails to allege sufficient facts to support a claim for conspiracy in restraint of trade, (C)Plaintiff fails to allege sufficient facts to support a claim for monopoly, (D) the cause of action for bad faith professional review is not viable, (E)Plaintiff fails to allege sufficient facts to support a claim for defamation, (F)Plaintiff fails to allege sufficient facts to support a claim for tortious interference with prospective economic relations, and (G)Plaintiff fails to allege sufficient facts to support a claim for unfair competition.

A.Premature

Doctors must exhaust available administrative remedies and succeed in setting aside the decision denying or withdrawing privileges in a mandamus action prior to initiating suit against the hospital and individuals involved in the decision.SeeMir v. Little Co. of Mary Hosp., 844 F.2d 646(9th Cir.1988);Westlake Community Hospital v. Superior Court of Los Angeles County, 17 Cal.3d 465, 131 Cal.Rptr. 90, 551 P.2d 410(1976).

Defendants argue Plaintiff's state law causes of action are premature because he failed to exhaust administrative remedies.Defendants contend Plaintiff only alleges his application for privileges has been presumptively denied.They maintain, if the application is ultimately denied, Plaintiff must seek relief through an administrative hearing,...