Opinion
E065978
03-16-2018
CASSANDRA LEON, Plaintiff and Appellant, v. SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP, Defendant and Respondent.
Osbornlaw, Richard G. Osborn; Skapik Law Group, Mark J. Skapik and Blair J. Berkley for Plaintiff and Appellant. Sheppard Mullin Richter & Hampton, Moe Keshavarzi, John T. Brooks and A. Alex Kuljis for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIC1305662) OPINION APPEAL from the Superior Court of Riverside County. Sharon J. Waters, Judge. Affirmed. Osbornlaw, Richard G. Osborn; Skapik Law Group, Mark J. Skapik and Blair J. Berkley for Plaintiff and Appellant. Sheppard Mullin Richter & Hampton, Moe Keshavarzi, John T. Brooks and A. Alex Kuljis for Defendant and Respondent.
Plaintiff and appellant Cassandra Leon appeals the grant of defendant and respondent Southern California Permanente Medical Group's (SCPMG) special motion to strike her complaint (SLAPP) filed pursuant to Code of Civil Procedure section 425.16.
SLAPP is an acronym for "strategic lawsuit against public participation." (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57.)
Leon filed a lawsuit against her employer Stratham Fund Six in Leon v. Stratham Fund Six, Ltd. (as Lincoln Apartments) et.al, Riverside Superior Court No. RIC 1105646 (civil action) for wrongful termination. Leon had a complicated pregnancy and missed work, which allegedly resulted in her being fired. Prior to the trial in the civil action, Leon's counsel served a subpoena on her treating physician Dr. Alia Shbeeb. Shbeeb was employed at Kaiser Permanente Hospital (Kaiser), which was owned, operated and/or managed by SCPMG. A medical/legal coordinator at SCPMG accepted service on behalf of Shbeeb and responded to the subpoena that it usually requested an upfront fee of $1,800 (four hours of the witness fee) for the appearance of its physicians. The medical/legal coordinator also advised Leon's counsel that any cancellation less than 24 hours prior to testimony would result in a $200 cancellation fee. Leon's counsel did not object to the prepayment of the fee or to the email being sent by a SCPMG medical/legal coordinator rather than Shbeeb herself. The civil action settled and Shbeeb's testimony was not needed.
Leon then filed a Second Amended Complaint (SAC) on behalf of herself and a class of persons similarly situated contending the practice of SCPMG requiring up front witness fees, minimum fees and cancellation fees was an unfair business practice because it was unauthorized and violated Government Code section 68092.5. SCPMG filed its SLAPP motion. The trial court granted the SLAPP motion and dismissed Leon's lawsuit.
Leon appeals the dismissal on the following grounds: (1) the public interest exception of Code of Civil Procedure section 425.17 barred SCPMG's SLAPP motion; (2) the SAC was not subject to a SLAPP motion; (3) she had shown a prima facie case of liability on all of her causes of action; and (4) the litigation privilege of Civil Code section 47 did not apply.
FACTUAL AND PROCEDURAL HISTORY
The facts are taken from the declarations submitted in support of the SAC and the SLAPP motion filed by SCPMG. When necessary, we also refer to the complaint and exhibits included with the complaint.
A. COMPLAINT
On May 10, 2013, Leon filed her SAC. She alleged five causes of action. The first cause of action was for a violation of Business and Professions Code sections 17200 and 17500 (UCL); the second cause of action was for money had and received; the third cause of action was for civil extortion; the fourth cause of action was for conversion of money; and the fifth cause of action was for negligence. Leon identified the class as persons who paid money to SCPMG, excluding statutory witness fees, in connection with the subpoena of SCPMG affiliated treating physicians purporting to require their appearance at any trial, deposition, arbitration, or administrative hearing. SCPMG improperly informed these persons it was entitled to receive money in advance of appearance and testimony; it was entitled to a minimum stated fee regardless of the length of the testimony; and a set cancellation fee if the appearance was cancelled for these listed hearings.
Leon alleged she was the plaintiff in the civil action. "In connection" with the civil action, Leon caused a civil trial subpoena to be duly served on Shbeeb on February 22, 2013, requiring her appearance as a witness at the trial of the civil action scheduled for March 1, 2013. Shbeeb had provided medical treatment to Leon during her pregnancy. Leon's medical condition and treatment were relevant issues in the civil action.
SCPMG's medical/legal coordinator, Jeff Haverstick, accepted service of the subpoena on behalf of Shbeeb. Exhibit A was the email response from Haverstick to a paralegal employed by Leon's counsel, Heather Schourup. It was stated Shbeeb had agreed to be placed on call for the trial appearance beginning March 4, 2013. However, 24- to 48-hour notice must be given prior to the actual appearance. It further stated, "Court appearances for our physicians are charged at a minimum of 4 hours and are expected to be paid in advance of testimony. Anything over the 4 hour minimum reverts back to the hourly rate. Witness fees for the above physician are $450/hour. Please see invoice attached." Haverstick advised Leon's counsel to contact him if there were any questions. An invoice was attached that billed Leon's counsel for $1,800 and included language "*Please note 24 hour cancellation notice required or $200 late fee will apply." It listed the fee was for an "expert witness" and the check was to be made payable to SCPMG. It was paid by Leon on March 29, 2013.
Leon alleged that this was false and misleading as the above implied that SCPMG had a right to impose any charge or fee with respect to any subpoenaed physician, could require a minimum number of hours as a condition of compliance with the subpoena, and that a cancellation fee could be charged. It was implied by SCPMG that it was acting under authority of law and was entitled to the fees. Further, SCPMG was not authorized by Shbeeb to act as alleged and that the fees and conditions were on behalf of SCPMG and not Shbeeb or any other physician employed by SCPMG. Shbeeb received none of the fees.
Leon's counsel remitted the $1,800 in order to not alienate Shbeeb and to insure her testimony at trial. The civil action settled and Shbeeb was not called to testify. SCPMG refunded the $1,800 several months later.
As for the first cause of action, the actions by SCPMG alleged in the SAC were fraudulent, deceptive and unfair business practices pursuant to the UCL. Leon alleged that by continuing this practice, SCPMG was unjustly enriched to the prejudice of her and the class. SCPMG must be enjoined from this practice. It should be enjoined from violating Government Code section 68092.5. Further, it should be ordered to make restitution to those from whom it unjustly had taken fees. Leon sought the award of attorney fees.
The second cause of action was for money had and received in which it was alleged that although SCPMG had returned Leon's money, there was due and owing to the class sums according to proof. The third cause of action for civil extortion was on the basis that SCPMG "impliedly threatened" to not make available its physicians unless Leon and the class paid the money and accepted the conditions of witnesses. The fourth cause of action for conversion of money was based on Leon and the class turning over money to SCPMG to which SCPMG had no right to receive. The fifth cause of action of negligence alleged that SCPMG had failed to exercise the degree of care, skill, diligence and loyalty that would commonly have been exercised by persons under the same or similar circumstances.
In the prayer, Leon requested an order enjoining SCPMG from continuing its unfair business practices, to account to Leon the extent of its unjust enrichment, ordering restitution to the class and Leon, the costs of suit and the attorney's fees incurred by Leon on behalf of the class.
B. SLAPP MOTION
SCPMG filed its SLAPP motion on January 11, 2016. SCPMG alleged the SAC was based on protected activity pursuant to Code of Civil Procedure section 425.16. The SAC was based on protected activity because it challenged statements and conduct reasonably related to the civil action. Each cause of action challenged email communications from SCPMG to Leon's counsel in response to a trial subpoena to Shbeeb in the civil action. Code of Civil Procedure section 425.16 was broadly interpreted to cover anything connected with litigation.
Further, Leon had failed to show a probability of prevailing. First, the privilege of Civil Code section 47, subdivision (b) barred the statements made in connection with the litigation. Second, SCPMG alleged the subpoena never communicated that Shbeeb was only being called to provide percipient witness testimony, which would have required a lesser fee. Expert witness fees were appropriate. Third, the fees charged were authorized by Government Code section 68092.5 and/or the parties entered into a contract for the fees, which was also authorized by Government Code section 68092.5. Moreover, pursuant to Government Code section 68092.5, if Leon believed the fees requested were unreasonable or improperly demanded, she could have moved to compel Shbeeb's appearance without payment, or seek an order from the trial court setting the proper fee under Government Code section 68092.5, subdivision (c). Finally, the matter should have been resolved in the civil action and Leon could not "tortify" a procedural discovery dispute through subsequent derivative litigation.
SCPMG also contended the public interest exemption in Code of Civil Procedure section 425.17 did not apply because Leon sought personal relief greater than the relief sought for the class. Further, private enforcement was not necessary because procedures to compel testimony already existed in Government Code section 68092.5. Finally, the issue was too narrow to be in the public interest.
Haverstick submitted his declaration that he was employed by SCPMG as a medical/legal coordinator and that he was responsible for accepting subpoenas for deposition or trial testimony on behalf of physicians working at Kaiser in Riverside. It was his practice not to insist on collection of an expert witness fee if the subpoenaing party informed him that he or she intended to examine the physician on percipient matters and not the physician's opinion. Haverstick contacted Schourup regarding the subpoena received on behalf of Shbeeb. He sent her an email and invoice for the fee and there was no objection. Haverstick declared that if he was informed that Shbeeb would only be a percipient witness, only a $35 witness fee would have been charged. Also, it was the practice of SCPMG that even if the fee was not paid in advance, the physician would appear at the deposition or trial. Haverstick listed several cases in which only a percipient witness fee was collected.
The subpoena for Shbeeb from Leon's counsel was attached. On the subpoena was stamped that Haverstick accepted service "on behalf of Shbeeb." There was no indication in the subpoena as to the type of testimony sought from Shbeeb.
Shbeeb submitted a declaration that she was a physician employed by SCPMG from August 2010 to August 2013. Shbeeb had authorized as part of her employment with SCPMG that SCPMG would accept subpoenas on her behalf and negotiate the terms of her appearances when necessary. She would receive her regular pay for the time she was testifying and not the fees collected for the appearance. She appreciated this service, as having to deal with subpoenas and negotiating with attorneys would disrupt her practice. She specifically approved of SCPMG accepting the subpoena in the civil action and approved of SCPMG negotiating the terms of her appearance.
A deposition transcript of Schourup was included. She had knowledge that SCPMG regularly had a medical/legal coordinator who accepted service on the part of its physicians. She never told Haverstick that Shbeeb would not be asked to express an opinion during her appearance at trial. She never spoke with Shbeeb about her appearance. Schourup never expressed to Haverstick that the fee was too high or unauthorized.
SCPMG filed a request for judicial notice. This included Leon's designation of trial experts filed in the civil action and the original complaint filed in the instant case. Shbeeb was listed as the treating physician on the trial expert witness list.
C. DEMURRER AND RESPONSE
SCPMG additionally filed a demurrer to the SAC, on January 14, 2016. It essentially raised the same claims as those contained in the SLAPP motion—that each of the causes of action were based on statements that were privileged. Further, the fees were authorized or negotiated pursuant to Government Code section 68092.5 and the fees should have been disputed in the civil action. Since the SAC failed to state a cause of action it should be dismissed with prejudice.
Leon filed opposition. Leon contended that SCPMG violated Government Code section 68092.5 and there was no agreement on fees. Leon had plead appropriate causes of action. There was no litigation privilege because SCPMG had no standing in the civil action and the communications were not logically related to the lawsuit.
SCPMG filed a reply in support of the demurrer. It responded that the litigation privilege barred the SAC; Leon had not met her burden of showing SCPMG violated Government Code section 68092.5; Leon could not raise the claim in a separate tort action; and the SAC was barred by contract.
D. LEON'S OPPOSITION TO SCPMG'S SLAPP MOTION
Leon filed her opposition to the SLAPP Motion (opposition). Leon contended that SCPMG had violated Government Code section 68092.5 by requiring a minimum fee of $1,800 and imposing a cancellation fee.
Leon subpoenaed Shbeeb to testify in the civil action. Leon sought to prove in her employment action the reason for her hospitalization that caused her to miss work. Shbeeb would testify as to Leon's medical care. Leon did not have to disclose trial strategy as to whether Shbeeb would be a percipient witness or an expert to SCPMG. Leon rejected that there was an agency relationship between Shbeeb and SCPMG. In order for there to be an agency relationship, Shbeeb would have the right to control SCPMG's activities, SCPMG would act for her benefit and the profits must have inured to Shbeeb's benefit. All the fees collected went to SCPMG; there was no benefit to Shbeeb.
Leon first stated there was a public interest exception to the SLAPP motion. The action was brought solely for the public interest. Leon also alleged she had shown a prima facie case of liability on all of the causes of action. Moreover, the litigation privilege of Civil Code section 47 was not applicable. It did not apply to the extortion by SCPMG that if Leon did not pay the fee, Shbeeb would not testify. Additionally, SCPMG was not a party and had no standing.
Leon also insisted that SCPMG did not reach an agreement on the fees; Leon was coerced to pay the fees. The action was allowable as a separate action from the civil action. Leon concluded the SAC was exempt from the SLAPP statute because it was protecting an important public interest; there was no applicable litigation privilege; and the evidence established a prima facie case for all five causes of action.
Haverstick's deposition, taken on January 14, 2015, was attached. He stated that depending upon the physician who was to testify, there was a set fee and that was communicated to the attorney who issued the subpoena. He also advised them of the minimum fee and the cancellation fee. Since the filing of the SAC, the policies had changed. SCPMG no longer had a minimum fee, the fee was not collected in advance and there was no cancellation fee. The policy had changed 18 months prior to the deposition. He did not know why the policy had changed.
Leon objected to SCPMG's request for judicial notice.
E. HEARING AND RULING
The trial court issued a tentative ruling: "[Leon]'s primary argument in opposition to this motion that the public interest exception to the anti-SLAPP statute found in CCP section 425.17(b) applies to this case. The Court disagrees. Plaintiff has not established that (1) the action, if successful, would enforce an important right affecting the public interest, and would confer a significant benefit, whether pecuniary or nonpecuniary, on the general public or a large class of persons or that (2) private enforcement is necessary and places a disproportionate financial burden on [Leon] in relation to [Leon]'s stake in the matter.
"[Leon] does not argue that [SCPMG] failed to make a prima facie showing that [Leon]'s causes of action arise from an act of [SCPMG] in furtherance of [SCPMG]'s rights of petition or free speech in connection with a public issue. (CCP § 425.16(b)(1).) The Court finds that [SCPMG] has met its burden. The Court further finds that [Leon] cannot establish reasonable probability of prevailing because the claims are barred by the litigation privilege. (CC § 47)." It alternatively sustained SCPMG's demurrer on the ground that the claims were barred by the litigation privilege.
A hearing on the matter was conducted on February 10, 2016. Leon argued the litigation privilege did not apply. SCPMG was a third party who was not a party to the underlying lawsuit. SCPMG inserted itself between the patient and the doctor.
The trial court asked, had Shbeeb been personally been served would the litigation privilege apply. Counsel for Leon admitted that in a general sense "yes" but argued the subpoena did not relate to the underlying employment action. The trial court noted that the subpoena related to the witness's testimony in the underlying litigation. The trial court advised the parties it did not believe the public interest exception applied because Government Code section 68092.5 provided its own remedy. Leon's counsel argued that SCPMG was not subject to the subpoena so that section was not available for relief. The trial court responded that Leon's counsel had recognized SCPMG as the appropriate agent for service. Leon's counsel argued there was a triable issue as to agency.
SCPMG argued that the issue of agency did not matter because the focus was on the communication, not the party who made the statement for purposes of the litigation privilege. Further, Shbeeb stated in her declaration that SCPMG was acting as her agent.
The trial court issued its ruling on February 24, 2016. It stated SCPMG's SLAAP motion was granted. The demurrer was moot in light of the ruling. In its issuance of the order, the trial court noted that it confirmed the tentative ruling. The case was dismissed on March 25, 2016.
DISCUSSION
A. STANDARD OF REVIEW
"Review of an order granting or denying a motion to strike under [Code of Civil Procedure] section 425.16 is de novo." (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3; see also Gallimore v. State Farm Fire & Casualty Ins. Co. (2002) 102 Cal.App.4th 1388, 1396 ["Whether section 425.16 applies and whether the plaintiff has shown a probability of prevailing are both legal questions which we review independently on appeal"].) "This includes whether the anti-SLAPP statute applies to the challenged claim. [Citation.] Furthermore, we apply our independent judgment to determine whether [the plaintiff's] causes of action arose from acts by [the defendant] in furtherance of [the defendant's] right of petition or free speech in connection with a public issue. [Citations.] Assuming these two conditions are satisfied, we must then independently determine, from our review of the record as a whole, whether [the plaintiff] has established a reasonable probability that he would prevail on his claims." (Thomas v. Quintero (2005) 126 Cal.App.4th 635, 644-645.)
B. PUBLIC INTEREST EXEMPTION OF CODE OF CIVIL PROCEDURE SECTION 425.17
Leon contends the trial court erred by granting SCPMG's SLAPP motion as her action was filed solely in the public interest within the meaning of Code of Civil Procedure section 425.17. Leon contends the lawsuit was solely in the public interest because she did not seek any individual relief or relief greater than or different than that sought by the putative class; the action would enforce an important right and provide a significant benefit to the public in that it seeks to enforce the important right of California litigants to subpoena witnesses without being extorted into making advance and minimum payments; and Government Code section 68092.5 did not provide a remedy as the remedy in the statute only applies to "another party's expert witness."
"A special motion to strike under [Code of Civil Procedure] section 425.16 is a procedural device that allows a defendant to obtain early dismissal of a lawsuit that qualifies as a SLAPP." (San Diegans for Open Government v. Har Construction, Inc. (2015) 240 Cal.App.4th 611, 621.) "In 1992, the Legislature enacted section 425.16 in an effort to curtail lawsuits brought primarily 'to chill the valid exercise of . . . freedom of speech and petition for redress of grievances' and 'to encourage continued participation in matters of public significance.' [Citation.] The section authorizes a special motion to strike '[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States [Constitution] or [the] California Constitution in connection with a public issue . . . .' [Citation.] The goal is to eliminate meritless or retaliatory litigation at an early stage of the proceedings." (Gallimore v. State Farm Fire & Casualty Ins. Co., supra, 102 Cal.App.4th at pp. 1395-1396, fn. omitted.)
Code of Civil Procedure section 425.17, subdivision (b) provides a "public interest" exception to section 425.16. There are three specified conditions that must be met in order to qualify for the exception within Code of Civil Procedure section 425.17, subdivision (b) as follows: "(1) The plaintiff does not seek any relief greater than or different from the relief sought for the general public . . . . [¶] (2) The action, if successful, would enforce an important right affecting the public interest, and would confer a significant benefit, whether pecuniary or nonpecuniary, on the general public or a large class of persons. [¶] (3) Private enforcement is necessary and places a disproportionate financial burden on the plaintiff in relation to the plaintiff's stake in the matter."
"Whether a lawsuit falls within the public interest exception is a ' "threshold issue, and we address it prior to examining the applicability of section 425.16." ' " (The Inland Oversight Committee v. County of San Bernardino (2015) 239 Cal.App.4th 671, 675.) " 'If a plaintiff's lawsuit comes within section 425.17, subdivision (b), it is exempt from the anti-SLAPP statute, and thus, a trial court may deny the defendants' special motion to strike without determining whether the plaintiff's causes of action arise from protected activity, and if so, whether the plaintiff has established a probability of prevailing on those causes of action under section 425.16, subdivision (b)(1).' " (Id. at p. 676.) The merits of Leon's claims are irrelevant to the inquiry whether section 425.17 applies. (Inland Oversight Committee, at p. 677.) The applicability is determined by examining the allegations in the complaint. (Tourgeman v. Nelson & Kennard (2014) 222 Cal.App.4th 1447, 1460.)
In Blanchard v. DIRECTTV, Inc. (2004) 123 Cal.App.4th 903 (Blanchard), DIRECTV obtained several writs of seizure authorizing the United States Marshall to seize products from distributors and manufacturers of products used to pirate their programming content. During the seizures, they obtained information on those who had purchased such products. It sent demand letters to thousands of people who purchased these devices advising that they cease using the devices or a lawsuit would be filed. (Id. at pp. 909-910.) In response, plaintiffs filed a class action lawsuit against DIRECTV claiming that the mailing of the demand letters violated the UCL, violated their civil rights and constituted extortion. The trial court granted DIRECTV's SLAPP motion. (Id. at pp. 910-912.) On appeal, the plaintiffs argued that Code of Civil Procedure section 425.17, subdivision (b) protected their UCL claims from dismissal. (Blanchard, at p. 912.)
The Blanchard court concluded that Code of Civil Procedure section 425.17, subdivision (b) did not apply. Initially, the court found that the action did not enforce an important right affecting the public interest. The lawsuit only sought to enjoin DIRECTV from sending the particular demand letter to users of a particular device. Although this may have applied to "thousands" of persons, there was "no public interest principle being vindicated by this action." (Blanchard, supra, 123 Cal.App.4th at pp. 914-915.) It noted that the lawsuit did not attack demand letters in general and found, "Regardless of the outcome of this lawsuit, properly worded demand letters will remain a standard practice designed to avoid the necessity of legal action." (Id. at p. 915.) It concluded, "Therefore, if plaintiff's UCL claim were successful, it would establish no ringing declaration of the rights of all pirating-device purchasers, nor would it lead to a wholesale change in the practice of sending demand letters." (Ibid.)
Similarly here, Leon's lawsuit would not enforce an important right affecting the public interest. The lawsuit here at most would change SCPMG's policy, and in fact did, of collecting expert witness fees in advance and charging a cancellation fee. This did not lead to a wholesale change in the collection of expert witness fees. Additionally, there is no evidence in the SAC as to how many people were actually subject to these fees. As will be discussed post, any persons who objected to the fees could seek a remedy in the trial court. This is not the type of "public interest" that is protected by Code of Civil Procedure section 425.17.
Moreover, private enforcement was unnecessary because an adequate remedy exists in Government Code section 68092.5. Government Code section 68092.5 pertains to the payment of expert witness fees. Subdivision (a) provides in pertinent part as follows: "A party requiring testimony before any court, tribunal, or arbiter in any civil action or proceeding from any expert witness, other than a party or employee of a party, who is . . ., (2) a treating physician and surgeon or other treating health care practitioner who is to be asked to express an opinion during the action or proceeding, . . . shall pay the reasonable and customary hourly or daily fee for the actual time consumed in the examination of that witness by any party attending the action or proceeding. The hourly or daily fee shall not exceed the fee charged the party who retained the expert except where the expert donated his or her services to a charitable or other nonprofit organization. A daily fee shall only be charged for a full day of attendance at a deposition or where the expert was required by the deposing party to be available for a full day and the expert necessarily had to forego all business he or she would have otherwise conducted that day but for the request that he or she be available all day for the scheduled deposition."
Subdivision (c) of Government Code section 68092.5 provides that "If a party requiring the appearance by subpoena or notice of another party's expert witness under this subdivision deems that the hourly or daily fee of that expert for providing testimony is unreasonable, that party may move for an order setting the compensation of that expert. This motion shall be accompanied by a declaration stating facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion. Notice of this motion shall also be given to the expert."
The trial court properly concluded that private enforcement was not required in this case based on its interpretation that Government Code section 68092.5 provided for a remedy in the civil action. As stated by SCPMG, there is a "built-in mechanism" in Government Code section 68092.5 for resolving disputes over expert fees. If Leon contested the four-hour minimum, the payment in advance, or the cancellation fee, and SCPMG would not change its demand after informal resolution, Leon could have sought relief in the trial court. Leon failed to avail herself of this remedy and cannot now claim in a separate action that fees charged by SCPMG were unlawful. She cannot avail herself of the protections of Code of Civil Procedure section 425.17.
Leon insists the trial court erred by concluding Government Code section 68092.5 provided for an adequate remedy for the unreasonable fee demand. Leon insists that subdivision (b) of Government Code section 68092.5 only applies to those who are "another party's expert witness." She relies on the language "If a party requiring the appearance by subpoena or notice to another party's expert witness." Leon insists that the language limited the trial court's authority to adjudicate fee disputes to involving another party's employed or retained witness but not when the person is an independent witness like Shbeeb in this case. SCPMG contends the statutory language makes clear it applies to any expert witness who is subpoenaed or any party-designated expert who has been duly noticed to appear. It would make no sense to have the trial court have power over only those party-designated experts but not a subpoenaed trial witness.
SCPMG has asked this court to take judicial notice of the legislative history of Government Code section 68052, specifically the Assembly Committee on Judiciary, Legislative History File for A.B. 3891, Statutes of 1988. We deny the request because we resolve the issue based on the plain language of the statute.
We first look to the plain meaning of the statute. "In the first step of the interpretative process we look to the words of the statute themselves. [Citations.] The Legislature's chosen language is the most reliable indicator of its intent because ' "it is the language of the statute itself that has successfully braved the legislative gauntlet." ' [Citations.] We give the words of the statute 'a plain and commonsense meaning' unless the statute specifically defines the words to give them a special meaning. [Citations.] If the statutory language is clear and unambiguous, our task is at an end, for there is no need for judicial construction. [Citation.] In such a case, there is nothing for the court to interpret or construe." (Macisaac v. Waste Management Collection and Recycling, Inc. (2005) 134 Cal.App.4th 1076, 1082-1083.)
Here, the title of Government Code section 68092.5 is "Expert witnesses; compensation; service; notice of continuance or cancellation; deposition." In subdivision (a) of Government Code section 68092.5, the court refers to "[a] party requiring testimony . . . from any expert witness." It additionally addresses that a party requiring "the attendance shall either accompany the service of the subpoena or notice with a tender of the expert's fee." Subdivision (b) provides, "The service of a proper subpoena or notice accompanied by the tender of the expert witness fee described in subdivision (a) is effective to require the party employing or retaining the expert to produce the expert for testimony." (Italics added.)
Based on the language, Government Code section 68092.5 applies to all expert witnesses. If a party seeks to have an already designated expert employed by another party appear to testify, notice, not a subpoena, is sufficient. However, a subpoena is still required for all other expert witnesses. The reasonable interpretation of subdivision (c) is that a party can request an order setting expert witness fees for (1) an expert witness who has been subpoenaed by a party, and (2) another party's witness who has been given notice.
Here, Leon should have sought informal resolution with SCPMG regarding the fees being charged for the appearance of Shbeeb. If that was unsuccessful, she could have sought a trial court order. She made no attempt to seek this remedy.
The public interest exception in Code of Civil Procedure section 425.17 does not apply. Having concluded as such, we need not determine if the fees sought by SCPMG under Government Code section 68092.5 were proper. Further, we address Leon's claim that SCPMG could not assert the same rights under Government Code section 68092.5 as Shbeeb in our discussion post, as to whether SCPMG was an agent for Shbeeb.
C. SLAPP MOTION
Having concluded that the public interest exception in Code of Civil Procedure section 425.17 does not apply, we address Leon's additional claims that the trial court erred by granting SCPMG's SLAPP motion.
"The analysis of an anti-SLAPP motion generally involves two steps. First, the defendant has the burden to show the defendant's allegedly wrongful conduct was 'in furtherance of its free speech or petition rights and that the cause of action arose from this protected conduct. [Citation.] Second, if the defendant meets this burden, the burden shifts to the plaintiff to show a probability of prevailing. The plaintiff must ' " 'demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.' " ' " (San Diegans for Open Government v. Har Construction, Inc., supra, 240 Cal.App.4th at p. 622.)
As such, in resolving a SLAPP motion, the trial court determines in the first prong whether the defendant has made a threshold showing that the challenged action arose from protecting activity, i.e. "in furtherance of a [defendant]'s right of petition or free speech under the United States or California Constitution in connection with a public issue." (Code of Civ. Proc., § 425.16, subd. (b)(1).) In the second prong, "[i]f the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim." (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)
"A plaintiff opposing an anti-SLAPP motion bears the burden to make a prima facie showing of facts that would support a judgment in plaintiff's favor. [Citations.] Anti-SLAPP motions must be supported (and opposed) by declarations stating facts upon which the liability or defense is based. [Citation.] [¶] In opposing an anti-SLAPP motion, the plaintiff cannot rely on the allegations of the complaint, but must produce evidence that would be admissible at trial. [Citation.] Thus, declarations may not be based upon 'information and belief' [citation] and documents submitted without the proper foundation are not to be considered." (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 211-212.) As noted, we review the determination de novo. (Thomas v. Quintero, supra, 126 Cal.App.4th at pp. 644-645.)
Here, defendant in her opening brief provided boiler plate authorities on the first prong but made no argument that this was not protected activity. We conclude she has conceded the issue.
Nonetheless, such claim would lack merit. "[T]he statutory phrase 'cause of action . . . arising from' means simply that the defendant's act underlying the plaintiff's cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citation.] In the anti-SLAPP context, the critical point is whether the plaintiff's cause of action itself was based on an act in furtherance of the defendant's right of petition or free speech. [Citations.] 'A defendant meets this burden by demonstrating that the act underlying the plaintiff's cause fits one of the categories spelled out in section 425.16, subdivision (e).' " (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) Under section 425.16, subdivision (e)(2), an act in furtherance of a person's right of petition or free speech includes, "any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law." The communication here was clearly in relation to an official judicial proceeding.
We turn to the second prong of Code of Civil Procedure section 425.16, subdivision (b)(1), whether Leon has demonstrated a probability of prevailing on the claim. Leon's claims are based solely on the email sent by Haverstick to Leon's counsel.
"The litigation privilege protects a 'publication or broadcast . . . [¶] . . . [¶] (b) In any . . . (2) judicial proceeding. . . .' [Citation.] The privilege applies to 'any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) to have some connection or logical relation to the action.' " (Blanchard, supra, 123 Cal.App.4th at p. 919.)
"In furtherance of the public policy purposes it is designed to serve, the privilege prescribed by [Civil Code] section 47(2) has been given broad application." (Silberg v. Anderson (1990) 50 Cal.3d 205, 211.) The privilege "applies to any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the courtroom and no function of the court or its officers is involved." (Id. at p. 212.)
Leon contends that the privilege did not apply because SCPMG was not a "participant authorized by law" to the underlying civil action. It had no standing in the underlying civil action. Leon insists SCPMG was not acting as an agent of Shbeeb.
It is disingenuous for Leon to argue that SCPMG was not an agent of Shbeeb. Leon's paralegal, Schourup, admitted it was common practice to serve subpoenas on the medical/legal coordinator at Kaiser. Leon's counsel did not object to payment to SCPMG, and did not argue payment should be made to Shbeeb directly, but rather freely submitted the fee in order to further the civil action by securing the presence of Shbeeb at trial. Shbeeb considered SCPMG to be her agent in these matters and there was no contrary evidence. Since SCPMG acted as Shbeeb's agent, the litigation privilege would apply as it was an interested party in the civil action.
We need not address SCPMG's further claim that the statement was privileged regardless of who made the statement. --------
Leon further claims that the communication must have some bearing on or connection with the subject matter of the litigation. She insists that the communication as to the expert fees had no relation to the litigation, which was based on wrongful discharge and disability, and that it did not address a necessary or useful step in the litigation. This is too narrow a reading of Civil Code section 47. "The privilege is broadly applied to protect most publications within lawsuits provided there is some connection between the lawsuit and the publication. [Citation.] Any doubt as to whether the privilege applies is resolved in favor of applying it." (Adams v. Superior Court (1992) 2 Cal.App.4th 521, 529.) Here, SCPMG assured Leon that it would put Shbeeb on call for her appearance in the civil action. Further, since this would interfere with Shbeeb's normal practice, a fee would be required to be paid. This clearly had a "connection" to the civil action because it was the mechanism to have Shbeeb testify on Leon's behalf.
Based on the foregoing, the litigation privilege of Civil Code section 47, subdivision (b) applied to the email communications. As such, no admissible evidence was presented to support that Leon could prevail on her claims as it was protected by the litigation privilege of Civil Code section 47. The SLAPP motion was properly granted by the trial court.
DISPOSITION
The trial court's order granting the special motion to strike pursuant to section 425.16 is affirmed. Respondent is awarded its costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. SLOUGH
J.