Wisner v. Dignity Health

Decision Date18 October 2022
Docket NumberC094051
PartiesGARY R. WISNER, Plaintiff and Appellant, v. DIGNITY HEALTH et al., Defendants and Respondents
CourtCalifornia Court of Appeals Court of Appeals

Certified for Partial Pub. 11/4/22

APPEAL from a judgment of the Superior Court of San Joaquin County No. STK-CV-UD-2020-0003078 Barbara A. Kronlund, Judge. Affirmed.

Gary R. Wisner, in pro. per.; The Arkin Law Firm, Sharon J. Arkin Barta Law, and Theresa J. Barta for Plaintiff and Appellant.

Manatt, Phelps & Phillips, Barry S. Landsberg, Doreen W. Shenfeld, and Joanna S. McCallum for Defendants and Respondents.


This appeal is from an order striking a complaint under Code of Civil Procedure section 425.16, the anti-SLAPP (strategic lawsuit against public participation) statute.[1]Plaintiff Gary R. Wisner, M.D., who is representing himself, filed a complaint alleging that defendants Dignity Health and the Dignity Health St. Joseph's Medical Center (collectively, SJMC) falsely reported to the National Practitioner Data Bank (NPDB) that Wisner surrendered his clinical privileges while under investigation.[2] The trial court granted a special motion to strike the complaint after concluding that Wisner's claims arose from a protected activity and that Wisner failed to establish a probability of prevailing on the merits. Wisner contests both aspects of the trial court's order, and he also contends the court erred by denying his motion to conduct limited discovery prior to the hearing on the anti-SLAPP motion. Finding no error, we affirm.


Wisner is an orthopedic surgeon who has been practicing since 1988. He holds medical licenses in five states and is certified by the American Board of Orthopedic Surgery. From 1990 through March 2019, Wisner held "courtesy" staff privileges at SJMC, an acute care hospital in Stockton, California. As a courtesy staff member, Wisner could admit up to 10 patients per year at SJMC.

In May 2018, Wisner was charged in a criminal indictment with 11 felony counts of making false or fraudulent insurance claims (Pen. Code, § 550, subd. (a)) related to patient care services. In July 2018, the Medical Board of California ("Medical Board") issued an accusation against Wisner seeking to revoke or suspend his license to practice medicine in California for gross negligence and repeated negligent acts in his care and treatment of multiple patients.

In January 2019, Wisner asked to be placed on SJMC's emergency department "on call panel." At the time, Wisner had not treated any patients at SJMC for approximately two decades.

In response to Wisner's request to join SJMC's on call panel, Don Wiley, SJMC's chief executive officer, conferred with Alvin Cacho, M.D. (Cacho), then chief of staff. Given the length of time since Wisner had last treated patients at SJMC, and the pending accusation and criminal indictment, they concluded that there was a need to "develop additional information" to evaluate Wisner's request. Cacho "began an investigation."

Thereafter, in a series of e-mails and letters, Cacho asked Wisner to provide SJMC with additional information about the accusation and indictment, including a complete copy of any materials that Wisner was "entitled" to obtain from the Medical Board through prehearing discovery (e.g., the Medical Board's investigative report). Cacho explained that SJMC had a responsibility to assess the validity and peer review implications of the charges against Wisner based on an independent review of the relevant evidence. Cacho informed Wisner that compliance was mandatory and that his failure to comply may result in suspension of his clinical privileges. Cacho also told Wisner that after receiving the requested materials, SJMC would determine the implications for Wisner's staff membership and clinical privileges.

Wisner responded that he could not satisfy SJMC's demand to provide more information because he had no additional information to provide. Instead, by e-mail dated March 4, 2019, Wisner "resign[ed] all privileges" at SJMC. In his resignation email, Wisner explained: "I am clearly not under any investigation at [S]MC] . . . since you pointed out repeatedly that you do not even know my activities as a surgeon these last 30 years. I have always had an excellent relationship with all hospitals including [S]MC], and I still remain a member in good standing at all hospitals including your own. To avoid further costly litigation to assert my legal rights both to remain on your medical staff and to protect my excellent medical staff privileges, I would like to completely resign all privileges at [S]MC] at this time."

On March 15, 2019, SJMC filed a report with the NPDB disclosing that Wisner had surrendered his clinical privileges while under investigation. SJMC also reported the resignation to the Medical Board, as required by Business and Professions Code section 805.

In March 2020, Wisner asked the Secretary of the U.S. Department of Health and Human Services (DHHS) to review the accuracy of the NPDB report. Wisner asserted that the NPDB report was false because he was not under investigation.

Wisner also separately filed a complaint against SJMC, accusing the hospital of falsely reporting to the NPDB that Wisner had resigned while under investigation "out of spite and with a retaliatory motive" because of Wisner's repeated requests to be placed on the emergency department on call panel. The complaint alleged claims against SJMC for fraud, libel/defamation, intentional interference with his right to pursue a lawful profession, negligent and intentional interference with prospective economic advantage, unlawful business practices, and intentional infliction of emotional distress.

In June 2020, while the complaint was pending, the Secretary of the DHHS issued a decision rejecting Wisner's challenge to the NPDB report. The Secretary determined that Wisner had surrendered his clinical privileges "while under investigation or to avoid an investigation in a matter which could have led to a reportable professional review action had the investigation been completed." The Secretary found "no basis to conclude that the report should not have been filed or that [the report was] not accurate, complete, timely or relevant."

That same month, SJMC filed a special motion to strike the complaint pursuant to section 425.16 (the anti-SLAPP motion). SJMC argued that the complaint was subject to the anti-SLAPP statute because it arose from protected activity under section 425.16, subdivision (e)(1), (2), and (4), namely, the filing of the NPDB report.

Wisner opposed the anti-SLAPP motion, arguing that the filing of the NPDB report was not protected activity and that he had, in any event, shown a probability of prevailing on the merits. Wisner also filed a motion under section 425.16, subdivision (g) for an order allowing limited discovery to oppose the anti-SLAPP motion (the discovery motion). Wisner sought evidence to prove that the NPDB report was false and that SJMC officials knew it was false and acted with malice in filing the report.

The court denied Wisner's discovery motion, finding that he failed to demonstrate good cause for the requested discovery. The court reached this conclusion for two reasons. First, the proposed discovery did not define the term "investigation," and therefore was vague and ambiguous. Second, under any definition of investigation, the "evidence already in [Wisner's] possession" clearly demonstrated that Wisner was under investigation and therefore the proposed discovery was unnecessary as it would not change the outcome.

The court granted SJMC's anti-SLAPP motion. The court concluded that SJMC carried its burden of demonstrating that Wisner's complaint arose out of protected activity, namely, the filing of the NPDB report. Wisner, in contrast, failed to carry his burden of showing a probability of success on the merits. The court specifically noted that "[a]ll of the evidence before the court supports [S]MC's] contention that the [NPDB] report was true when made-a contention that has been endorsed by [the DHHS]." Thus, SJMC was statutorily immune from liability under section 11137 of the federal Health Care Quality Improvement Act of 1986 (HCQIA). (42 U.S.C. § 11101 et seq.)

Wisner timely appealed the orders granting the anti-SLAPP motion and denying the discovery motion. (§§904.1, subd. (a)(13), 906, 425.16, subd. (i).)

I Order Granting Anti-SLAPP Motion

Wisner contends that the trial court erred in granting SJMC's anti-SLAPP motion to strike the complaint because (1) not all of Wisner's claims arose from protected activity to which section 425.16 applies; and (2) the court improperly weighed the evidence and made inferences in favor of SJMC in determining that Wisner failed to demonstrate a probability of success on the merits. We conclude that the first contention was forfeited and that the second contention lacks merit. We explain below.

A. California's anti-SLAPP statute

Enacted in 1992, California's anti-SLAPP statute is designed to deter "lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances." (§ 425.16, subd. (a); Wilson v. Cable News Network Inc. (2019) 7 Cal.5th 871, 883-884.) To that end, the statute provides a special motion procedure for "weeding out, at an early stage, meritless claims arising from protected activity." (Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral); Wilson, supra, at p. 884.)

Resolution of an anti-SLAPP motion involves a two-step procedure. (Baral, supra, 1 Cal.5th at p. 384.) At the first step, the moving defendant bears the burden of establishing that the...

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