El-Attar v. Tenet Healthsystem

Filed 7/19/06 El-Attar v. Tenet Healthsystem CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, John P. Shook and Warren L. Ettinger, Judges. Affirmed.

Lurie, Zepeda, Schmalz & Hogan, Kurt L. Schmalz, and Donna M. Dean for Cross-complainant and Appellant.

Law Offices of Mark T. Kawa and Mark T. Kawa for Cross-defendant and Respondent Tenet HealthSystem QA, Inc.

Landegger & Baron, Larry C. Baron, and Christopher L. Moriarty for Cross-defendant and Respondent Hollywood Presbyterian Medical Office Building I.

This is an appeal from the judgment entered on a cross-complaint after the trial court granted the motions of respondent Tenet HealthSystem QA, Inc. (hereinafter Tenet) and respondent Hollywood Presbyterian Medical Office Building I (HPMOB) for summary adjudication and the motion of Tenet for nonsuit against appellant Osamah El‑Attar, M.D. (appellant). We affirm the judgment (orders for summary adjudication and nonsuit).

FACTUAL AND PROCEDURAL BACKGROUND

Tenet is the owner of Queen of Angels-Hollywood Presbyterian Medical Center in Los Angeles (hereinafter referred to as Hospital). Tenet and HPMOB are the co-owners of the adjacent medical office building (Building).

Appellant was a cardiologist with staff privileges at the Hospital. Appellant also occupied suite 902 in the Building pursuant to a five-year lease executed on September 1, 1989, with HPMOB. The lease was extended until August 31, 1997. The lease expired and was neither extended nor renewed. Appellant remained in the suite as a month-to-month tenant. In 1998, Tenet purchased Hospital from QueensCare. Included in the purchase was an option agreement which gave Tenet the option to lease space in the Building. In November 2002, Tenet attempted to exercise an option to lease several suites in the Building including suite 902. Appellant refused to vacate the suite even after HPMOB served him with several notices to terminate.

On June 23, 2003, HPMOB filed a complaint for unlawful detainer against appellant (the unlawful detainer action). Tenet also filed a complaint against appellant on June 30, 2003, with causes of action for intentional and negligent interference with prospective business advantage based upon his continuing refusal to vacate the suite (the underlying action).

Judgment was entered in HPMOB's favor on the unlawful detainer action, and on or about September 22, 2003, appellant vacated the suite.

For many years, appellant had been an outspoken critic of the Hospital's practices. In August or September 2002, after a federal survey and audit uncovered deficiencies at the Hospital, the Hospital administration decided to have outside agencies review the work of individual physicians on its staff. Subsequently, appellant and three other doctors circulated a petition calling for a vote of no confidence in the Hospital's chief executive officer (CEO), Andrew Greene. In January 2003, a committee of the Hospital received a report (the Hirsch Report) which criticized the treatment procedures and conduct of appellant. Another report (the Mercer report) found that appellant exhibited poor medical documentation in 16 of the 17 cases it reviewed. On January 30, 2003, following the outside agencies' investigations, appellant's Hospital staff privileges were suspended.

Appellant then filed a cross-complaint in the underlying action in October 2003, alleging five causes of action against Tenet and HPMOB arising out of his eviction and suspension. A first amended cross-complaint was filed thereafter, alleging the following causes of action against Tenet only: (1) violation of Business and Professions Code section 2056; (2) intentional infliction of emotional distress; (3) interference with the practice of medicine; and (4) interference with prospective economic advantage. It alleged the following causes of action against Tenet and HPMOB: (5) retaliatory eviction; (6) intentional infliction of emotional distress by wrongful eviction; (7) interference with the practice of medicine by wrongful eviction; and (8) interference with prospective economic advantage by wrongful eviction.

On July 28, 2004, Tenet filed a motion for summary adjudication on the first through fourth causes of action. On August 5, 2004, Tenet filed a motion for summary adjudication on the fifth through eighth causes of action (based upon the eviction). On August 6, 2004, HPMOB filed a motion for summary judgment on the four eviction causes of action.

After the motions were heard together on November 2, 2004, the court granted summary adjudication in favor of Tenet on the fifth through eighth causes of action on the grounds that Tenet was not appellant's landlord and thus it could not be liable for retaliatory eviction and that there was no triable issue of fact as to the existence of a conspiracy between Tenet and HPMOB. It granted summary adjudication in favor of HPMOB on the fifth through eighth causes of action on the grounds that there was no triable issue of fact as to the existence of a conspiracy, whether there was a retaliatory eviction for appellant's exercise of his rights of free speech, and whether HPMOB engaged in extreme and outrageous conduct in evicting appellant.[1] Tenet's motion for summary adjudication on the first four causes of action was denied.

Appellant's remaining claims (the first four causes of action) against Tenet proceeded to trial on December 21, 2004. After the conclusion of appellant's case-in-chief, Tenet moved for nonsuit. On January 12, 2005, after reviewing the parties' pleadings and hearing oral argument, the trial judge granted Tenet's motion.[2] This appeal followed.

CONTENTIONS ON APPEAL

The gist of appellant's appeal is that he was targeted for his outspoken criticism of the Hospital, his suspension and eviction were in retaliation for his criticism, Tenet caused him to lose a significant amount of business, and that Tenet and HPMOB's close relationship resulted in his wrongful eviction.

Specifically, appellant contends that the court erred in granting summary adjudication because: (1) the question of retaliatory eviction is one of fact and he was entitled to a jury trial on that issue; (2) Tenet could still be held liable for retaliatory eviction even though it was not his landlord; (3) there was evidence from which a reasonable inference could be drawn that Tenet conspired with HPMOB to evict appellant; (4) the relationship between Tenet and HPMOB supported the inference that they were jointly liable for each other's tortious conduct; (5) since Tenet could be held liable for retaliatory eviction, the court erred in granting summary adjudication for the other three causes of action. He also contends the court erred in granting Tenet's nonsuit motion because (1) it applied the wrong standard for proximate causation; (2) it erred in holding that there is no private right of action under Business and Professions Code section 2056; (3) there was evidence from which a jury could conclude that Tenet intentionally inflicted emotional distress; (4) it improperly excluded evidence on the claim for punitive damages.

DISCUSSION

I

The Summary Judgment Motion

A. Summary Judgment Rules

Our job in reviewing the propriety of the order granting summary adjudication is to determine de novo whether any triable issues of material fact exist and thus whether the moving party is entitled to judgment as a matter of law. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460; Committee to Save the Beverly Highlands Homes Assn. v. Beverly Highlands Homes Assn. (2001) 92 Cal.App.4th 1247, 1260.)

A defendant moving for summary judgment must support the motion with evidence. â€