Toranto v. Jaffurs

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 JASON TORANTO, Case No. 16cv1709-JAH (NLS) 12 Plaintiff, ORDER DENYING DEFENDANTS’ 13 v. MOTIONS FOR SUMMARY JUDGMENT (Doc Nos. 275, 288, 289, 14 DANIEL JAFFURS, et al., 291) 15 Defendants. [16] 17 INTRODUCTION 18 Pending before the Court are Defendants Children’s Hospital of Orange County 19 (“CHOC”), Children’s Hospital of Orange County Medical Staff (“CHOC Medical Staff”), 20 Dr. Amanda Gosman and Rady Children’s Hospital-San Diego (“Dr. Gosman and 21 Rady’s”), and Dr. Daniel Jaffurs’ (“Dr. Jaffurs”) Motions for Summary Judgment. See 22 Doc. Nos. 275, 288, 289, 291. Plaintiff Dr. Jason Toranto (“Plaintiff’ or “Dr. Toranto”) 23 filed responses in opposition. See Doc. Nos. 305, 311, 320. The Motions are fully briefed. 24 After careful consideration of the pleadings filed by all parties, and for the reasons set forth 25 below, this Court DENIES Defendants’ Motions for Summary Judgment. 26 FACTUAL BACKGROUND 27 Dr. Toranto is a pediatric plastic surgeon and craniofacial surgeon. Doc. No. 263 at 28 pg. 2. Dr. Toranto and Dr. Jaffurs are former colleagues from previous employment at the 1 UC Irvine School of Medicine (“UCI”) and later, Children’s Hospital of Orange County 2 (“CHOC”). Id. Dr. Toranto alleges that Dr. Jaffurs made false and defamatory statements 3 that caused CHOC Pediatric Subspecialty Faculty (the “CHOC Foundation”) to deny Dr. 4 Toranto an employment opportunity. Id. Dr. Toranto alleges that after he moved to San 5 Diego, Dr. Jaffurs acted in concert with Dr. Amanda Gosman, the Chief of Plastic Surgery 6 at Rady Children’s Specialists of San Diego and UCSD, and continued to make false and 7 defamatory statements to Rady Children’s Hospital, Rady Children’s Specialists of San 8 Diego (the “Rady Foundation”), and the University of California, San Diego (“UCSD”). 9 Id. at pg. 3. In addition, Dr. Toranto alleges that Dr. Maria Minon, the Chief Medical 10 Officer at Children’s Hospital Orange County, acted within the scope of her employment 11 when making false oral statements to Rady’s Children’s and the Rady Children’s Medical 12 Staff. Id. at page 16, 50. Dr. Toranto alleges that Rady Children’s Hospital denied his 13 application without speaking to or meeting with him, and without going through an 14 objective peer review process to assess his qualifications. Id. at pg. 4. 15 Dr. Toranto brings this case against Defendants, alleging seven causes of action: (1) 16 conspiracy in restraint of trade; (2) monopoly; (3) retaliation pursuant to California 17 Business & Professional Code §§ 510-512; (4) defamation; (5) violation of Labor Code § 18 1050 et seq.; (6) tortious interference with prospective economic advantage; and (7) unfair 19 competition. See Doc. No. 263. 20 PROCEDURAL BACKGROUND 21 On July 1, 2016, Dr. Toranto filed his initial complaint against CHOC Medical 22 Group, CHOC Medical Staff, Children’s Hospital of Orange County, Dr. Gosman, Dr. 23 Jaffurs, The Regents of the University of California, and various Rady entities. See Doc. 24 No. 1. On August 15, 2016, Dr. Toranto filed an amended complaint. See Doc. No. 21. 25 Rady’s filed a motion to dismiss on September 1, 2016, and Dr. Jaffurs filed a motion to 26 dismiss on September 13, 2016. See Doc Nos. 21, 32. On March 21, 2018, this Court 27 issued an Order GRANTING in part and DENYING in part Defendants’ motions to 28 dismiss. See Doc. No. 107. Dr. Toranto filed a Second Amended Complaint on July 25, 1 2018 and a Third Amended Complaint on March 11, 2019. See Doc. Nos. 169, 263. On 2 March 21, 2019, Children’s Hospital of Orange County filed an Amended Motion for 3 Summary Judgment. See Doc. No. 275. On April 15, 2019, Dr. Gosman and Rady’s filed 4 a Motion for Summary Judgment. See Doc. No. 288. On April 15, 2019, Dr. Jaffurs filed 5 a Motion for Summary Judgment. See Doc. No. 289. On April 15, 2019, CHOC Medical 6 Staff filed a Motion for Summary Judgment. See Doc. No. 291. Plaintiff filed a response 7 in opposition to Rady Defendants’ Motion for Summary Judgment on June 3, 2019. See 8 Doc. No. 305. On June 4, 2019, Plaintiff filed a response in opposition to CHOC and CMS 9 Defendants’ Motion for Summary Judgment. See Doc. No. 311. Plaintiff filed a response 10 in opposition to Defendant Dr. Jaffurs’ Motion for Summary Judgment on June 10, 2019. 11 See Doc. No. 320. 12 DISCUSSION 13 I. Legal Standard 14 Summary judgment is only appropriate when no genuine dispute of material fact 15 exists. Irdeto Access, Inc. v. Echostar Satellite Corp., 383 F.3d 1295, 1299 (Fed. Cir. 16 2004), quoting Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353 (Fed. Cir. 1998). 17 A fact is material when, under the governing substantive law, it could affect the 18 outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); 19 Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). A dispute about a material fact is 20 genuine if “the evidence is such that a reasonable jury could return a verdict for the 21 nonmoving party.” Anderson, 477 U.S. at 248 . 22 A party seeking summary judgment always bears the initial burden of establishing 23 the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317 , 24 323 (1986). The moving party may satisfy this burden in two ways: (1) by presenting 25 evidence that negates an essential element of the nonmoving party’s case or (2) by 26 demonstrating that the nonmoving party failed to make a showing sufficient to establish an 27 element essential to that party’s case on which that party will bear the burden or proof at 28 trial. Id. at pgs. 322-23. 1 Where the party moving for summary judgment does not bear the burden of proof at 2 trial, it may show that no genuine issue of material fact exists by demonstrating “there is 3 an absence of evidence to support the non-moving party’s case.” Id. at pg. 325. The 4 moving party is not required to produce evidence showing the absence of a genuine issue 5 of material fact, nor is it required to offer evidence negating the nonmoving party’s claim. 6 Lujan v. National Wildlife Fed’n, 497 U.S. 871, 885 (1990); United Steelworkers v. Phelps 7 Dodge Corp., 865 F.2d 1539, 1542 (9th Cir. 1989). “Rather, the motion may, and should, 8 be granted so long as whatever is before the District Court demonstrates that the standard 9 for the entry of judgment, as set forth in Rule 56(c), is satisfied.” Lujan, 497 U.S. at 885 10 (quoting Celotex, 477 U.S. at 323 ). If the moving party fails to discharge this initial burden, 11 summary judgment must be denied and the court need not consider the nonmoving party’s 12 evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60 (1970). 13 “Disputes over irrelevant or unnecessary facts will not preclude a grant of summary 14 judgment.” T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626 , 630 15 (9th Cir. 1987). “The district court may limit its review to the documents submitted for 16 purpose of summary judgment and those parts of the record specifically referenced 17 therein.” Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026 , 1030 (9th Cir. 2001). 18 Therefore, the court need not “scour the record in search of a genuine issue of triable fact.” 19 Keenan v. Allen, 91 F.3d 1275 , 1279 (9th Cir. 1996) (citing Richards v. Combined Ins. 20 Co., 55 F.3d 247, 251 (7th Cir. 1995)). 21 The court may not make credibility determinations, and inferences to be drawn from 22 the facts must be viewed in the light most favorable to the party opposing the motion. 23 Masson v. New Yorker Magazine, 501 U.S. 496, 520 (1991); see Anderson, 477 U.S. at 24 255; Matsushita, 475 U.S. at 587. 25 // 26 // 27 // 28 // 1 II. Analysis 2 The Court will first address CHOC and CHOC Medical Staff’s Motions. CHOC 3 Medical Staff makes the same arguments as CHOC. See Doc. No. 291-1. The Court will 4 then address the Motion filed by Dr. Gosman and Rady’s, followed by the Motion filed by 5 Dr. Jaffurs. 6 a. CHOC and CHOC Medical Staff 7 i. Agency and Respondeat Superior 8 CHOC argues that California law prevents lay organizations from exercising control 9 over decisions made by physicians. Doc. No. 275-1 at pgs. 18-19. CHOC contends that 10 the medical staff, not the hospital, controls the hiring of physicians. Id. at pg. 19. CHOC 11 argues that respondeat superior does not apply here because one could not reasonably 12 conclude, based upon the evidence, that Dr. Toranto was a CHOC employee. Id. at pgs. 13 21-24. CHOC further argues that it did not supervise Dr. Toranto, did not pay him, and 14 never created an employer-employee relationship. Id. at pg. 24. CHOC contends that Dr. 15 Jaffurs was never an agent of CHOC. Id. at pg. 29. CHOC argues that Dr. Toranto does 16 not allege that Dr. Jaffurs’ unlawful conduct was authorized or ratified by CHOC. Id. at 17 pg. 30. CHOC argues that the “gravamen of [Dr. Toranto’s] claims against CHOC is the 18 conduct of Jaffurs, not CHOC.” 19 In response, Dr. Toranto argues that Dr. Jaffurs represented himself as CHOC’s 20 agent, and CHOC assented to this representation through silence. Doc. No. 311 at pg. 18. 21 Dr. Toranto contends that Dr. Jaffurs “exercised apparent authority as CHOC’s Medical 22 Director of Plastic Surgery when he deprived Plaintiff of clinic time at CHOC.” Id. Dr. 23 Toranto asserts that by delegating responsibilities for peer review activities to its medical 24 staff, the hospital impliedly makes the medical staff its agent. Id. at pgs. 18-19. Dr. 25 Toranto contends that Dr. Jaffurs and Dr. Minon are also agents of CHOC Medical Staff. 26 Id. at pgs. 19-20. Dr. Toranto asserts that Dr. Jaffurs, as the Section Chief of Plastic 27 Surgery, designated himself as an agent of the CHOC Medical Staff. Id. at pg. 20. Dr. 28 Toranto contends that among Dr. Jaffurs’ other duties, his responsibilities as Section Chief 1 included acting as a presiding officer at section meetings, participating in the 2 administration of the section, and launching investigations into the clinical privileges of 3 section members. Id. Dr. Toranto argues that Dr. Minon, as Vice President of Medical 4 Affairs and Chief Medical Officer at CHOC, was also an agent of CHOC. Id. Dr. Minon 5 was appointed by CHOC’s CEO and served as an administrative liaison between hospital 6 administrators. Id. Dr. Toranto argues that both Dr. Jaffurs and Dr. Minon were 7 empowered and subject to removal from their positions by the CHOC bylaws. Id. Dr. 8 Toranto argues thus, Dr. Jaffurs and Dr. Minon’s communications with Rady’s Hospital 9 were done as agents on behalf of CHOC and CHOC Medical Staff. Id. at pgs. 20-24. 10 ii. Professional Review 11 CHOC asserts that the Health Care Quality Improvement Act creates immunity from 12 damages liability for professionals who participate in peer review activities. See Doc. No. 13 275-1. CHOC also asserts that the standard for such immunity covers all professional 14 review action taken in the following situations: 15 “(1) in the reasonable belief that the action was in the furtherance of quality health care, (2) after reasonable effort to obtain the facts of the matter, (3) after adequate notice and [16] hearing procedures are afforded to the physician or after such other procedures as are fair 17 to the physician under the circumstances; and (4) in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after [18] meeting the requirements of paragraph 3.” Id. at pgs. 19-20 19 CHOC contends that California law extends immunity to “communications made in 20 the initiation or course of any proceedings authorized by law such as peer 21 review/credentialing proceedings.” Id. at pg. 20. CHOC asserts that California law also 22 extends immunity to “any communication which is not a lie and is intended in good faith 23 to aid in the evaluation of the qualifications, fitness, and/or character of a physician.” Id. 24 at pg. 21. Id. at pg. 40. CHOC contends that California law extends immunity to 25 “communications made in the initiation or course of any proceedings authorized by law 26 such as peer review/credentialing proceedings.” Id. at pg. 20. 27 Dr. Toranto argues whether Rady’s Hospital engaged in a “sham peer review” and 28 the applicability of civil immunities are both contested questions of fact. Doc. No. 311 at 1 pgs. 24-29. Dr. Toranto asserts that the his peer review lasted 840 days compared to the 2 average of 75 days. Id. at pg. 24. Dr. Toranto contends that the fact that Rady’s requested 3 a peer reference from someone not provided by Dr. Toranto, failing to recuse peer 4 reviewers with biases against Dr. Toranto, and disproportionately weighing negative 5 comments about Dr. Toranto all serve as evidence for his contention that the professional 6 review was a sham peer review. Id. at pgs. 24-25. Dr. Toranto argues that civil immunities 7 do not apply because there is evidence that shows CHOC knew such information “was 8 false or otherwise lacked a good faith intent,” and CHOC acted with “malice.” Id. at pgs. 9 25-27. 10 iii. Conspiracy and Restraint of Trade 11 CHOC argues that Dr. Toranto has always had full medical staff privileges at CHOC. 12 Doc. No. 275-1 at pg. 39. CHOC contends that Dr. Toranto has never experienced any 13 restraint at CHOC and can still admit and care for his patients at CHOC. Id. CHOC asserts 14 that there is no evidence of conspiracy and Dr. Toranto’s antitrust conspiracy and injury 15 assertions are without merit. Id. 16 In response, Dr. Toranto asserts that there is ample evidence showing that Dr. 17 Gosman expressly asked Dr. Jaffurs, and Dr. Jaffurs agreed, to offer negative information 18 about Dr. Toranto so Rady’s could deny Dr. Toranto’s application. Doc. No. 311 at pg. 19 30. Dr. Toranto asserts that Dr. Jaffurs agreed to solicit negative information about Dr. 20 Toranto from people at UC Irvine and CHOC and provide such information to Rady’s. Id. 21 Dr. Toranto contends that Dr. Minon joined in the conspiracy by proffering false and 22 negative statements about Dr. Toranto to Rady’s CMO, Irvin Kaufman. Id. Dr. Toranto 23 argues that CHOC and CHOC Medical Staff are liable for the actions of Dr. Jaffurs and 24 Dr. Minon under the doctrines of agency and respondeat superior. Id. 25 iv. Retaliation 26 CHOC argues that Dr. Toranto’s retaliation claim is dependent on the existence of 27 an employment relationship. Doc. No. 275-1 at pg. 40. CHOC asserts that it has never 28 employed Dr. Toranto or Dr. Jaffurs. CHOC contends that Dr. Toranto is not a third party 1 whom an employer retaliated, but rather Dr. Toranto is someone who allegedly suffered 2 retaliation by someone, Dr. Jaffurs, who was not an agent of CHOC. Id. 3 In response, Dr. Toranto argues that CHOC’s argument relies on the assumption that 4 Dr. Jaffurs was not an agent of CHOC or CHOC Medical Staff. Doc. No. 311 at pg. 31. 5 Dr. Toranto contends that whether Dr. Jaffurs was a CHOC agent is a disputed question of 6 fact. Id. at pg. 32. 7 v. Defamation and Tortious Interference 8 CHOC contends that Dr. Toranto’s defamation and tortious interference claims are 9 premised on the liability of Dr. Jaffurs and not CHOC. Doc. No. 275-1 at pgs. 40-41. 10 In response, Dr. Toranto argues that CHOC and CHOC Medical Staff’s Motions 11 regarding Dr. Toranto’s defamation and tortious interference claims rely on the assumption 12 that Dr. Jaffurs is not an agent of CHOC, a disputed question of fact. Doc. No. 311 at pgs. 13 32-34. 14 vi. Unfair Competition 15 CHOC argues that there is no evidence that suggests CHOC was in competition with 16 Dr. Toranto. Doc. No. 275-1 at pg. 41. 17 In response, Dr. Toranto contends that CHOC’s argument relies on the assumption 18 that Dr. Jaffurs was not an agent of CHOC. Doc. No. 311 at pgs. 34-35. 19 The Court finds for Plaintiff. If the moving party in a motion for summary judgment 20 meets its initial burden, the nonmoving party must produce admissible evidence showing 21 that a genuine issue of material fact exists. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 22 F.3d 1099 , 1102–03 (9th Cir. 2000). The nonmoving party cannot defeat summary 23 judgment merely by demonstrating “that there is some metaphysical doubt as to the 24 material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 , 586 25 (1986). Rather, the nonmoving party must “go beyond the pleadings and by [his] own 26 affidavits, or by the depositions, answers to interrogatories, and admissions on file, 27 designate specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. 28 at 324 (citing FED. R. CIV. P. 56(e)) (internal quotations omitted). If the nonmoving party 1 fails to make this showing, the moving party is entitled to summary judgment. Celotex, 2 477 U.S. at 323. The Court finds that Plaintiff has made this showing. Plaintiff makes 3 references to specific instances where Dr. Jaffurs and Dr. Minon plausibly held themselves 4 out to be agents of CHOC. Doc. No. 311 at pgs. 17-20. The Court finds that whether Drs. 5 Jaffurs and Minon acted as agents of CHOC and CHOC Medical Staff is a genuine issue 6 of material fact. In addition, Plaintiff provides numerous instances in support of the notion 7 that Rady’s Hospital performed a sham peer review. Id. at pgs. 24-25. Plaintiff 8 demonstrates that Dr. Jaffurs, acting as an agent of CHOC and CHOC Medical Staff, either 9 knew such information was false, lacked good faith intent, or potentially acted with actual 10 malice. The Court finds that these facts, along with the applicability of civil immunities, 11 are genuine issues of material fact suitable for trial. Accordingly, Defendants CHOC and 12 CHOC Medical Staff’s Motions for Summary Judgment are DENIED. 13 b. Dr. Amanda Gosman and Rady’s 14 i. Conspiracy in Restraint of Trade and Monopoly 15 Dr. Gosman and Rady’s contend that in order for Dr. Toranto to establish causes of 16 action for conspiracy and monopoly under the Sherman Act, Dr. Toranto needs to establish 17 that plaintiff and defendants were competing in the same relevant product market, and Dr. 18 Toranto fails to do so. Doc. No. 288-1 at pgs. 16-21. Dr. Gosman and Rady’s argue that 19 the alleged anticompetitive conspiracy between Dr. Gosman and Dr. Jaffurs makes no 20 economic sense because Dr. Gosman practices medicine in San Diego while Dr. Jaffurs 21 practices medicine in Orange County. Id. at pg. 23. Dr. Gosman and Rady’s contend that 22 Dr. Toranto does not provide any reasoning as to why two doctors practicing medicine in 23 two different geographic markets would agree to restrain trade. Id. at pgs. 23-24. Dr. 24 Gosman and Rady’s argue that Dr. Toranto has not offered any evidence that shows either 25 Dr. Jaffurs or Dr. Minon had the authority to deny Dr. Toranto access to the relevant 26 market. Id. at pg. 24. Dr. Gosman and Rady’s assert that there was no “vertical 27 relationship” between Dr. Gosman and Dr. Jaffurs or Dr. Minon. Id. Dr. Gosman and [28] 1 Rady’s argue that neither defendant participates in the market that Dr. Toranto claims is 2 being monopolized. Id. at pg. 27. 3 In response, Dr. Toranto contends that the relevant geographic market is San Diego 4 and the product market is complex pediatric craniofacial surgery services. Doc. No. 305 5 at pgs. 22-24. Dr. Toranto argues that distinguishing hospital services from surgeon 6 services is unnecessary. Id. at pgs. 25-26. Dr. Toranto asserts that Rady’s market power 7 is a triable issue of material fact. Id. at 26. Dr. Toranto also asserts that there is ample 8 evidence to support the notion of an agreement between Dr. Jaffurs, Dr. Gosman, and 9 Rady’s Hospital. Id. at pgs. 26- 29. Dr. Toranto specifically references direct, covert 10 communications between Dr. Gosman and Dr. Jaffurs that were designed to prevent Dr. 11 Toranto from obtaining privileges at Rady’s. Id. at pg. 27. In one instance, Dr. Jaffurs 12 stated, “I did everything I could to help [Dr. Gosman] with keeping [Dr. Toranto] away.” 13 Doc. No. 305-1 at pg. 40. In response, Dr. Gosman told Dr. Jaffurs, “Ugh ok thanks so 14 much for all your help. I don’t know how to stop him[.]” Id. In a separate instance, Dr. 15 Jaffurs inquired, “Did [Dr. Gosman] manage to keep [Dr. Toranto] out?” Id.; Wu Dec. 16 Exh. 77 (Depo. Exh. 229); Wu Dec. Exh. 2 (Jaffurs Depo. Tr.) at 203; 19-206:3. 17 ii. Professional Review 18 Dr. Gosman and Rady’s contend that Dr. Toranto cannot prove that the statements 19 used against him in the peer review process were defamatory, but rather, the records show 20 “a diligent and thorough investigation into [Dr. Toranto’s] application….” Id. at pg. 29. 21 Dr. Gosman and Rady’s argue that they did not act with malice or fraud, and they did not 22 attempt to prevent Dr. Toranto from working or from receiving his credentials. Id. at pg. 23 31. Dr. Gosman and Rady’s assert that the alleged defamatory statements are protected by 24 civil immunities found both in federal and California law because the statements were 25 made during professional review activities. Id. at pgs. 32-41. 26 In response, Dr. Toranto argues that whether Rady’s engaged in a sham peer review 27 presents a triable question of material fact. Doc. No. 305 at pg. 21. Dr. Toranto defines a 28 sham peer review as something that “involves actions taken in bad faith by a professional 1 review body for some purposes other than the furtherance of quality care and is disguised 2 to look like legitimate peer review.” Id. Dr. Toranto asserts that there is ample evidence 3 to support this notion, including the length of Dr. Toranto’s peer review and 4 communication between Dr. Toranto and Defendants. Id. 5 iii. Defamation 6 Dr. Gosman and Rady’s argue that Dr. Toranto “will not be able to prove that the 7 statements argued to be defamatory…were false, or that the Rady Defendants and Dr. 8 Gosman knew them to be false or failed to take reasonable care to determine the truth or 9 accuracy of the statements.” Doc. No. 288-1 at pg. 29. Dr. Gosman and Rady’s contend 10 that Dr. Toranto did not suffer any harm as to any statements made by Dr. Gosman and 11 Rady’s. Id. at pg. 31. Dr. Gosman and Rady’s assert that they did not act with malice, 12 oppression, or fraud in making any of the statements. Id. 13 In response, Dr. Toranto asserts that his reputation was damaged as a result of these 14 defamatory statements. Doc. No. 305 at pgs. 36-37. Dr. Toranto argues that the evidence 15 in the record defeats any qualified immunity Dr. Gosman and Rady’s would otherwise 16 enjoy for these professional peer reviews because a sham peer review is evidence of malice. 17 Id. at pgs. 37-41. Dr. Toranto argues that the alleged defamatory statements were false and 18 present triable issues of material fact. Id. at pgs. 33-34. Dr. Toranto contends that there is 19 ample evidence of defendants and cohorts ignoring the truth, recklessly disregarding the 20 truth, and in some instances, acting with actual malice. Id. at pgs. 35-37. In one instance, 21 Dr. Gosman reached out to the Chair of the Division of Plastic Surgery at UCSD to “have 22 a [expletive] session this afternoon” about Dr. Toranto. See Doc. No. 305-1; Wu Dec. Exh. 23 35 (UCSD00224-225); Wu Dec. Exh. 36 (UCSD00228-229). In addition, Dr. Gosman sent 24 Dr. Jaffurs a text message saying, “U called him a little [expletive] because he clearly is 25 one[.]” Doc. No. 305 at pg. 38. Dr. Toranto argues that this shows that Defendants 26 displayed actual malice towards him. Id. 27 // 28 // 1 iv. Misrepresentation 2 Dr. Gosman and Rady’s argue that Dr. Toranto is unable to prove that Dr. Gosman 3 made a false representation to prevent him from obtaining employment. Doc. No. 288-1 4 at pgs. 37-38. Dr. Gosman and Rady’s assert that Dr. Gosman’s statements regarding Dr. 5 Toranto were substantially true; Dr. Gosman believed the statements to be true when she 6 made them; the statements were made in the course of fulfilling her mandated employment 7 duties; and Dr. Gosman did not seek to prevent Dr. Toranto from gaining employment. Id. 8 In response, Dr. Toranto argues that Dr. Gosman’s statements were false and she 9 knew them to be false when she made the statements. Doc. No. 305 at pgs. 40-41. Dr. 10 Toranto contends that whether Dr. Gosman’s statements were made in the course of a 11 legitimate peer review is a triable question of material fact. Id. at pg. 41. Dr. Toranto 12 argues that whether Dr. Gosman’s misrepresentation constituted an attempt to prevent Dr. 13 Toranto from gaining employment is also a triable question of fact. Id. 14 The Court agrees with Plaintiff. Section 1 of the Sherman Act prohibits agreements 15 that unreasonably restrain trade. Thurman Industries, Inc. v. Pay ‘N Pak Stores, Inc., 875 16 F.2d 1369 , 1373 (9th Cir. 1989). Reasonableness is evaluated under either per se analysis 17 or the rule of reason. Id. The per se rule applies to a practice that “facially appears to be 18 one that would always or almost always tend to restrict competition and decrease output.” 19 National Collegiate Athletic Association v. Board of Regents of Univ. of Oklahoma, 468 20 U.S. 85 , 100, 104 S.Ct. 2948 , 82 L.Ed.2d 70 (1984). Restraint is presumed unreasonable 21 for practices subject to the per se rule. Id. Other practices are subject to a rule of reason 22 analysis which requires injury to competition in the relevant market. Alliance Shippers, 23 Inc. v. Southern Pacific Trasp. Co., 858 F.2d 567, 570 (9th Cir. 1988). The Court finds that 24 “reasonableness” is a genuine issue of fact suitable for trial. In addition, the Court finds 25 that Plaintiff sufficiently raises a genuine issue of fact as to whether Dr. Gosman and 26 Rady’s unreasonably injured competition in a relevant market. Further, the Court finds 27 that whether Dr. Gosman acted with knowledge of falsity when making her statements to 28 Dr. Jaffurs is also a genuine dispute of material fact. There is evidence in the record that 1 Dr. Gosman “repeatedly rebuffed [Dr. Toranto’s] attempts to obtain a position. For 2 example, Dr. Gosman told Plaintiff Rady had no need for another craniofacial surgeon, 3 even though internal Rady documents at the time showed there was such a need. Doc. No. 4 305 at pg. 41. The Court finds such facts and issues suitable for trial. Accordingly, 5 Defendants Rady’s and Dr. Gosman’s Motion for Summary Judgment is DENIED. 6 c. Dr. Daniel Jaffurs 7 i. Peer Review/Immunity 8 Dr. Jaffurs asserts that Dr. Toranto waived his right to sue Dr. Jaffurs when he signed 9 a consent and waiver, which reads: 10 “I hereby release from any liability any and all individuals and organizations who provide information to the Hospital, or its Medical Staff concerning my professional competence, [11] ethics, character and other qualifications for staff appointment and clinical privileges, and 12 I hereby consent to release of such information.” 13 Doc. No.289-1 at pg. 22. 14 Dr. Jaffurs contends that he enjoys the protection of numerous immunities. Id. 15 Specifically, Dr. Jaffurs argues that he enjoys immunity from liability for his statements 16 due to California state law, and Dr. Jaffurs did not act with malice, corruption, or unlawful 17 motive. Id. at pgs. 22-24. Dr. Jaffurs asserts that his statements were instead motivated by 18 the fact that he “had legitimate, serious concerns about [Dr. Toranto’s] surgical skills and 19 ability to interact professionally with other physicians, residents, and staff.” Id. at pg. 25. 20 Dr. Jaffurs argues that federal law also gives him immunity for liability because his 21 statements made about Dr. Toranto should be considered ‘professional peer review 22 activity.’ Id. Dr. Jaffurs argues that California state law affords him similar peer review 23 immunity. Id. at pgs. 26-30. 24 In response, Dr. Toranto argues that there is ample evidence showing Dr. Jaffurs’ 25 statements about Dr. Toranto were false and made with malice. Doc. No. 320 at pgs. 1926 20. Dr. Toranto argues that whether Rady’s engaged in a sham peer review and the 27 applicability of civil immunities are triable questions of fact. Id. at pgs. 29-33. Dr. Toranto 28 asserts that the evidence shows that Dr. Toranto received “glowing” evaluations and 1 performance reviews. Id. at pg. 19. Dr. Jaffurs himself at one point recommended Dr. 2 Toranto for promotion. Id. at pg. 20. Dr. Toranto contends that even while Dr. Jaffurs was 3 defaming Dr. Toranto, Dr. Jaffurs was still praising Dr. Toranto’s clinical outcomes. Id. at 4 pg. 20. Dr. Toranto asserts that the evidence shows that Dr. Jaffurs’ statements about 5 Plaintiff’s interactions with staff and residents are either false or greatly exaggerated. Id. 6 at pgs. 21-24. Dr. Toranto offers specific instances where Dr. Jaffurs allegedly acted with 7 malice, including derogatory, and expletive-filled statements made by Dr. Jaffurs 8 concerning Dr. Toranto. Id. at pg. 28. Dr. Toranto asserts that the waiver that he signed 9 does not shield Dr. Jaffurs from liability for intentional misconduct. Id. at pgs. 28-29. Dr. 10 Toranto argues that whether Dr. Jaffurs is able to assert protection under the various 11 immunities is a triable issue of material fact because the civil immunities assume the lack 12 of ill will and malice. Id. at pgs. 40-43. In support of this assert, Dr. Toranto cites to 13 various California state court cases that address the topic of actionable defamation. Id. 14 ii. Antitrust Claim 15 Dr. Jaffurs argues that Dr. Toranto’s antitrust claim fails because there was no 16 agreement among the defendants. Doc. No. 289-1 at pgs. 31-33. Dr. Jaffurs contends that 17 Dr. Toranto does not show that any of the defendants acted in concert with one another. 18 Id. at pgs. 31-32. Dr. Jaffurs argues that Dr. Toranto does not offer any evidence that Dr. 19 Jaffurs intended to harm competition, and there is no evidence of an antitrust injury. Id. at 20 pgs. 33-37. Dr. Jaffurs contends that he never made any statement about Dr. Toranto with 21 actual malice; the statements were not false; and Dr. Jaffurs did not act with reckless 22 disregard as to whether the statements were false. Id. at pgs. 37-39. Dr. Jaffurs argues that 23 his statements were not the proximate cause for any harm Dr. Toranto may have suffered. 24 Id. at pg. 39. 25 In response, Dr. Toranto argues that he has adequately raised a triable issue of fact 26 as to his antitrust claims. Doc. No. 320 at pgs. 34-37. Dr. Toranto contends that there is 27 ample evidence of direct communication between Dr. Jaffurs and Dr. Gosman, and there 28 is evidence of antitrust injury. Id. at pgs. 37-40. As stated, Dr. Toranto quotes Dr. Gosman, 1 when she told Dr. Jaffurs, “Ugh ok thanks so much for all your help. I don’t know how to 2 stop him.” Id. at pg. 38.1 3 iii. Defamation 4 Dr. Jaffurs argues that Dr. Toranto does not have an actionable defamation claim 5 because Dr. Jaffurs’ statements about Dr. Toranto are Dr. Jaffurs’ opinions and Dr. Jaffurs’ 6 personal concerns about Dr. Toranto’s clinical care. Doc. No. 289-1 at pg. 38. Dr. Jaffurs 7 contends that none of the statements were made with actual malice, falsity, or a reckless 8 disregard of falsity. Id. at pgs. 38-39. Dr. Jaffurs argues that his statements were not the 9 proximate cause of Dr. Toranto’s harm. Id. at pgs. 39-40. 10 In response, Dr. Toranto argues that whether Dr. Jaffurs’ statements were false and 11 made with malice is a triable question of material fact.2 Doc. No. 320 at pg. 42. 12 iv. Misrepresentation 13 Dr. Jaffurs asserts that Dr. Toranto’s misrepresentation claim fails because Dr. 14 Toranto cannot show that Dr. Jaffurs was an “employer”; the misrepresentation claim does 15 not apply to non-employers; and the claim does not apply to internal statements. Doc. No. 16 289-1 at pgs. 40-42. 17 In response, Dr. Toranto argues that Dr. Jaffurs himself boasted that his statements 18 prevented Dr. Toranto from being hired, and there is a triable question of fact as to whether 19 Dr. Jaffurs’ intentional actions and “preemptive smearing” cost Dr. Toranto an 20 employment opportunity. Doc. No. 320 at pgs. 43-44. 21 v. Tortious Interference with Prospective Economic Relations Claim 22 Dr. Jaffurs argues that Dr. Toranto’s tortious interference with prospective economic 23 relations claim and unfair competition claim both fail as a matter of law because Dr. 24 Toranto did not have any existing or prospective economic relationship, and Dr. Jaffurs did 25 not engage in any intentional wrongdoing. Doc. No. 289-1 at pgs. 45-49. [27] 1 Dr. Toranto’s evidence presented in Section II.b.i. is applicable here. [28] 1 In response, Dr. Toranto argues that there is a triable question of fact as to whether 2 Dr. Jaffurs’ misrepresentations constituted an attempt to prevent Dr. Toranto from 3 obtaining employment with UCSD or the Rady Foundation. Doc. No. 320 at pg. 44. 4 vi. Unfair Competition 5 Dr. Jaffurs argues that Dr. Toranto’s UCL claim fails because Dr. Toranto’s other 6 claims fail as a matter of law. Doc. No. 289-1 at pg. 48. 7 In response, Dr. Toranto argues that “to the extent any of [Dr. Toranto’s] causes of 8 action survive summary judgment, summary judgment must be denied as to [Dr. Toranto’s] 9 claim for unfair competition as well.” Doc. No. 320 at pg. 48. 10 The Court finds for Plaintiff. In the endeavor to establish the existence of a factual 11 dispute, the opposing party need not establish a material issue of fact conclusively in its 12 favor. It is sufficient that “the claimed factual dispute be shown to require a jury or judge 13 to resolve the parties’ differing versions of the truth at trial.” First Nat’l Bank of Ariz. V. 14 Cities Service Co., 391 U.S. 253, 289-90 (1968)); Giles v. General Motors Acceptance 15 Corp., 494 F.3d 865, 872 (9th Cir. 2007). Thus, the “purpose of summary judgment is to 16 ‘pierce the pleadings and to access the proof in order to see whether there is a genuine need 17 for trial.’ ” Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) Advisory Committee 18 Note to 1963 amendments). As mentioned above, Section 1 of the Sherman Act prohibits 19 agreements that unreasonably restrain trade. Thurman Industries, 875 F.2d at 1373. 20 Reasonableness is evaluated under either per se analysis or the rule of reason. Id. The per 21 se rule applies to a practice that “facially appears to be one that would always or almost 22 always tend to restrict competition and decrease output.” National Collegiate Athletic 23 Association, 468 U.S. 85, at 104 . Restraint is presumed unreasonable for practices subject 24 to the per se rule. Id. The Court finds that the “reasonableness” of Dr. Jaffurs’ actions in 25 allegedly restraining trade is a genuine dispute of material fact. The Court further finds 26 that Dr. Jaffurs’ motivation behind his communications with Dr. Gosman, and the potential 27 implications Dr. Jaffurs’ motivation in making those statements has on potential civil [28] 1 ||immunities, present genuine issues of material facts. Accordingly, Defendant Dr. Jaffurs’ 2 ||Motion for Summary Judgment is DENIED. 3 CONCLUSION 4 Based on the foregoing reasons, IT IS HEREBY ORDERED that: 5 (1) Defendant Children’s Hospital of Orange County’s Motion for Summary Judgment 6 (Doc. No.275) is DENIED; 7 (2) Defendants Rady’s and Dr. Amanda Gosman’s Motion for Summary Judgment 8 (Doc. No. 288) is DENIED; 9 (3) Defendant Dr. Daniel Jaffurs’ Motion for Summary Judgment (Doc. No. 289) is 10 DENIED; and 11 (4) Defendant CHOC Medical Staff’s Motion for Summary Judgment (Doc. No. 291) 12 is DENIED. 13 IT IS SO ORDERED. 14 || DATED: September 13, 2019 VU [15] 16 ys OHN A. HOUSTON 7 United States District Judge