Metropolitan News-Enterprise


Monday, December 11, 2017


Page 1


Court of Appeal:

Action Over Disclosure of Medical Records Was a SLAPP


By a MetNews Staff Writer


The Fourth District Court of Appeal on Friday affirmed the dismissal of an action, as a SLAPP, by a medical doctor who claims that confidential information as to his state of health, following a stroke, was unlawfully disseminated in order to force his resignation as a director of a healthcare district.

The doctor, Michael R. Solomon, sued the Desert Healthcare District, its then-CEO, Kathy Greco, and one of the directors, Kay Hazen, for violating the Information Practices Act of 1977. He claimed that Greco and Hazen wanted to get him out of the way because he had caught on to their illegal activity in funneling district funds into businesses outside the district in which they had financial interests.

Justice Marsha G. Slough of Div. Two wrote the opinion, which was not certified for publication, affirming the order by Riverside Superior Court Judge David M. Chapman granting the anti-SLAPP motion and ordering Solomon to pay the defendants’ attorney fees in the amount of $32,750.

First Prong

Slough said the first prong of the anti-SLAPP statute—that the action be based on an act “in furtherance of the…right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue”—was met. She wrote:

“The complaint alleges ‘[t]he...reason for these disclosures...was to...create a question in the mind of the public and electorate about the mental competence of Plaintiff Michael R. Solomon, M.D. and his ability to continue as a Director of the Desert Healthcare District.’ Thus, by Solomon’s own allegations, Greco’s disclosures of his medical information were made in connection with an issue of public interest—namely, a political figure’s fitness for office.’

 Solomon argued that the action was not based on speech but by the act of procuring, without his authorization, his medical records. Slough responded:

“We are not persuaded. The complaint alleges the disclosure of his medical information is what caused him severe emotional distress and was intended to secure his resignation. Additionally, there is no actionable Information Practices Act claim without a disclosure.”

High Court Decision

The plaintiff invoked the California Supreme Court’s 2006 opinion in Flatley v. Mauro. There it was held that illegal activity isnot deserving of First Amendment protection” and therefore, “the speech… falls outside the anti-SLAPP statute’s protection.”

Slough declared:

“Solomon misunderstands the exception. It applies to criminal conduct, not to any conduct for which California law recognizes a civil cause of action. Otherwise, the exception our high court has described as ‘narrow’ would swallow the anti-SLAPP statute because all civil complaints aim to address conduct prohibited by law….As there is no evidence respondents engaged in criminal conduct, we reject Solomon’s contention and affirm the court’s determination that his complaint arises from protected activity.”

Turning to the second prong of the statute—the inability of the plaintiff to show a probability of prevailing on the merits—the jurist said that Solomon has conceded the matter. In his opening brief, he related, he confessed an inability to win under the Information Practices Act, but asked to be allowed to amend his complaint to allege invasion of privacy.

While there is authority for allowing a complaint to be amended following the granting of an anti-SLAPP motion, Slough said, there is no authority for adding a new cause of action.

Public Service Alleged

Solomon advised the court that he brought the action in order to bring Greco’s misconduct to light and insisted that he should not be ordered to pay the defendants’ attorney fees in light of “his public service of obtaining the removal of Defendant Kathy Greco as the C.E.O. of Defendant DESERT HEALTHCARE DISTRICT.”

The awarding of attorney fees is ordinarily obligatory where an anti-SLAPP motion is granted. Solomon sought to invoke an exception: where the action was brought “solely in the public interest.”

Slough said the exception does not apply, pointing out:

“Solomon’s complaint seeks special and general damages for the severe emotional distress he claims Greco’s conduct caused him. None of the causes of action are based on the alleged extra-district spending he now claims is the crux of his lawsuit. As a result, we can confidently conclude the complaint was not brought solely for public benefit and affirm the court’s determination that respondents are entitled to attorney fees….”

The amount of the fees, she declared, is not excessive.

The case is Solomon v. Desert Healthcare District, E065066.


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