Pourzia v. St. Mary Medical Center
Filed 9/29/06 Pourzia v. St. Mary Medical Center CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 SEVEN
| G. FRANK POURZIA, Plaintiff, Appellant and Respondent, v. ST. MARY MEDICAL CENTER etc., et al., Defendants, Respondents and Appellants. | B178159 (Los Angeles County Super. Ct. No. NC034332) ORDER MODIFYING OPINION AND DENYING REHEARING [no change in the judgment] |
The petition for rehearing is denied, the request for judicial notice is granted and the opinion is modified as follows:
Add the following footnote at the end of the third full paragraph on page 13 and renumber the subsequent footnotes:
In its petition for rehearing St. Mary argues we violated Government Code section 68081 by addressing an issue not raised by the parties: whether an action for damages can be converted to a petition for a writ of mandate without amending the pleading. This issue, however, was raised in appellant’s opening brief in which he argued the first amended complaint, “while not being [a] masterpiece of pleading art, certainly alleges unfairness, irregularities and corruption in respondents’ quasi-judicial tribunal. We think, therefore, the first amended complaint probably sets [forth] grounds for administrative mandate now, or at the very least, grounds for an amended pleading . . . .”
St. Mary also argues our opinion “nullifies” our Supreme Court’s opinion in Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 203 which held suits against hospital review committees are subject to SLAPP motions under Code of Civil Procedure section 425.16. Kibler held hospital peer review qualifies as an “official proceeding“ for purposes of the SLAPP statute. Westlake‘s exhaustion requirement was not at issue in Kibler.
Finally, St. Mary contends some of the defendants named in Pourzia’s complaint for damages are not proper defendants in a mandamus action. On remand, the trial court should determine if the individual defendants have any residual administrative capacity and in the absence thereof they should be dismissed pursuant to the mutual request of the parties.
This modification does not represent a change in the judgment.
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WOODS, J. JOHNSON, J.
I concur only in denying the petition for rehearing.
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PERLUSS, P. J.
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