Kurwa v. Harrington, Foxx, Dubrow & Canter, Limited Liability Partnership

“At the present time, there exists a provider agreement between Physician Associates and Trans Valle[y] Eye Associates. As you know, one of the two co-owners of Trans' Valley, Dr. Badrudin Kurwa has had his license to practice medicine suspended in the State of California. Pursuant to the agreement between you and that entity, his participation in the provider agreement is automatically terminated. Moreover, we believe the corporate status of Trans Valley is inappropriate for the practice of medicine.

“To solve these problems, we have formed a new appropriate medical corporation for Dr. Kislinger. This new corporation will hire substantially all of the employees and will contract physicians of the previous entity, so there will be no interruption of services to patients or any noticeable change to anyone. To facilitate this transfer, we would request that PA transfer its provider agreement from Trans Valley to Mark Kislinger, M.D., Inc. Dr. Kurwa, because of his suspension, will not be a part of the new corporation.

“We would appreciate having the transfer take place as soon as possible to maintain continuity and quality of patient care, and to avoid any improper entanglement with Dr. Kurwa, whose license is suspended at the present time.

“I would appreciate discussing this matter with you to effectuate this change as smoothly as possible. Your cooperation is appreciated.”

The HMO did indeed cooperate. During the following two-month period, the HMO terminated the Capitation Agreement with Trans Valley, issued a request for proposal soliciting a new ophthalmology provider to replace Trans Valley, and thereafter entered into a new capitation agreement with Dr. Kislinger’s medical corporation.

In 2004, Dr. Kurwa filed suit against Dr. Kislinger, the HMO and others, alleging various causes of action in connection with the foregoing state of affairs. Among those allegations was the fourth cause of action, a derivative action brought on behalf of Trans Valley against Dr. Kislinger and his various medical corporations and Does 1 through 20 for tortious interference with Trans Valley’s Capitation Agreement with the HMO. On or about August 11, 2005, Dr. Kurwa named Goldfarb and his law firm as Doe defendants 1 and 2.

Harrington Foxx filed a special motion to strike pursuant to section 425.16 of the Code of Civil Procedure, a so-called anti-SLAPP motion. In that

Defendants rely on Macias v. Hartwell (1997) 55 Cal.App.4th 669 , 674 [ 64 Cal.Rptr.2d 222 ] (Macias) to argue that “The term ‘public forum’ has been construed broadly by the courts, and includes speech by mail.” The case is inapposite. In Macias, the “speech by mail” was a campaign flyer mailed to 10,000 union members in connection with an upcoming election for the office of union president. The Macias court concluded that “Speech by mail, i.e., the mailing of a campaign flyer, is a recognized public forum under the SLAPP statute.” (Id. at p. 674.) Again, a letter sent by an attorney to the president of the company with whom his client does business is not remotely similar to a campaign flyer mailed to 10,000 prospective voters.

Neither were the contents of the letter a matter of public interest within the meaning of the statute. As our colleagues explained in Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107 [ 1 Cal.Rptr.3d 501 ], “ ‘The definition of “public interest” within the meaning of the anti-SLAPP statute has been broadly construed to include not only governmental matters, but also private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity. [Citations.]’ (Damon [v. Ocean Hills Journalism Club (2000)] 85 Cal.App.4th [468,] 479 [ 102 Cal.Rptr.2d 205 ], citing Macias, supra, 55 Cal.App.4th at p. 674; and Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628 , 650-651 [ 49 Cal.Rptr.2d 620 ] (Wollersheim).) ‘Although matters of public interest include legislative and governmental activities, they may also include activities that involve private persons and entities, especially when a large, powerful organization may impact the lives of many individuals.’ (Wollersheim, supra, 42 Cal.App.4th at p. 650 [citing product liability suits, and real estate or investment scams as examples]; also quoted in Macias, supra, 55 Cal.App.4th at p. 674 and Damon, supra, 85 Cal.App.4th at p. 479.)” (Du Charme, supra, 110 Cal.App.4th at p. 115.)

Similarly, in Macias, supra, 55 Cal.App.4th 669 , “the defamation action arose out of a political flyer distributed to union members in the course of a campaign to elect its officers. (Id. at pp. 671-672.) ‘[T]he court found that campaign statements made during a union election constituted a “public” issue because the statements affected 10,000 union members and concerned a fundamental political matter—the qualifications of a candidate to run for office.’ (Damon v. Ocean Hills Journalism Club, supra, 85 Cal.App.4th p. 479, citing Macias, supra, 55 Cal.App.4th at pp. 673-674 [‘The public issue was a union election affecting 10,000 members and [plaintiff/ appellant’s qualifications to serve as president.’ (Italics added.].)” (Du Charme v. International Brotherhood of Electrical Workers, supra, 110 Cal.App.4th at p. 116.)

As the Du Charme court explained, Damon and Macias are examples of cases “in which First Amendment activity is connected to an issue of interest to only a limited but definable portion of the public, a narrow segment of society consisting of the members of a private group or organization—a 3,000-member homeowners association in the former, a 10,000-member

First, we note that the statements at issue in this case are not, as Harrington Foxx would have us believe, the undisputed fact of Dr. Kurwa’s suspension or the disputed alleged deficiencies in the corporate status of Trans Valley. Rather, the gist of Dr. Kurwa’s lawsuit against Dr. Kislinger is that the latter, in breach of his fiduciary duties, misappropriated an asset of Trans Valley to his own use and benefit. The means by which Dr. Kislinger allegedly achieved this objective was through the Goldfarb Letter, which requested the HMO to terminate the Capitation Agreement with Trans Valley and to enter into a new agreement with Dr. Kislinger alone. It is this “speech” which forms the basis of Dr. Kurwa’s complaint against Harrington Foxx.

Unlike the homeowners association members in Damon and the union members in Macias, there was no upcoming referendum pursuant to which members of the HMO would decide whether Dr. Kurwa should remain an authorized provider under the HMO’s health plan. Thus, in the terms of Du Charme, there was no “ongoing controversy, debate or discussion,” participation in which the anti-SLAPP statute was meant to encourage. Rather, this was a private matter between the principals of Trans Valley and the HMO which was ultimately concerned solely with the issue of who would be the signatory of the Capitation Agreement and thereby reap the substantial benefits of that agreement.

Harrington Foxx argues that because the Goldfarb Letter concerned the provision of health care, and health care is a matter of public interest, the

Harrington Foxx also maintains that this case is directly analogous to Integrated Healthcare Holdings, Inc. v. Fitzgibbons (2006) 140 Cal.App.4th 515 [ 44 Cal.Rptr.3d 517 ] (Integrated Healthcare), which held that the statements of the defendant physician, who was on staff at a hospital owned by the plaintiff, concerning the financial viability of the hospital were protected speech under the anti-SLAPP statute. Harrington Foxx argues that because both cases involve a written communication (a letter in this case/an e-mail in Fitzgibbons) between an interested party (Dr. Kislinger/ Dr. Fitzgibbons) to a limited audience (the president of the HMO/members of the medical executive committee) concerning a private health care provider (Trans Valley Eye Associates/Western Medical Center), we are to conclude that the Goldfarb Letter constituted protected speech within the meaning of the anti-SLAPP statute. However, the Integrated Healthcare court found the “public interest” requirement of section 425.16, subdivision (e)(4) was met in that case, not under the reasoning of Damon, Macias and Du Charme (that is, as a limited but definable portion of the public engaged in an ongoing controversy, debate or discussion) but as a matter of interest to the general public. (Integrated Healthcare, supra, 140 Cal.App.4th at p. 524 [“We have no difficulty placing the financial survival of four hospitals within the county into the category of ‘widespread public interest,’ and thus not subject to the ‘ongoing controversy’ rule enunciated in Du Charme.").) The identity of the doctors who own the ophthalmologic service provider under contract to the HMO is simply not a matter of widespread public interest.

In sum, because we conclude that the Goldfarb Letter was not made in the context of “an ongoing controversy, dispute or discussion, such that it warrants protection by a statute that embodies the public policy of encouraging participation in matters of public significance” (Du Charme v. International Brotherhood of Electrical Workers, supra, 110 Cal.App.4th at p. 119), it is not protected speech under the anti-SLAPP law. Accordingly, we concur with the trial court that defendants “failed to meet their threshold burden of showing that the Fourth Cause of Action (interference with a contractual relationship), arises out of protected activity.” Harrington Foxx’s additional arguments to the effect that, for various reasons, Dr. Kurwa cannot prevail at trial are properly the subject of a demurrer, not an anti-SLAPP motion.

The order is affirmed. Plaintiff is to recover his costs on appeal.

Mosk, J., and Kriegler, J., concurred.

Appellants’ petition for review by the Supreme Court was denied March 28, 2007, S150296.