[1475]Opinion
KLEIN, P. J. Defendant and appellant Charter Suburban Hospital (Hospital) appeals a postjudgment order awarding plaintiff and respondent Jehan Zeb Mir, M.D. (Mir) $45,205 in attorney fees under Business and Professions Code section 809.9.1
The essential issue presented in this case of first impression is whether a physician who succeeds on mandamus (Code Civ. Proc. § 1094.5) in overturning a disciplinary action by a hospital on the grounds of insufficient evidence is necessarily entitled to recover costs, including attorney fees, under section 809.9.2- 3
Merely because the trial court on mandamus found no substantial evidence to support the Hospital’s disciplinary decision and the appellate court affirmed does not establish the Hospital’s defense to the petition for writ of mandate or its appeal thereafter was frivolous, unreasonable, without foundation, or in bad faith, which conduct is a prerequisite to recovery under section 809.9. The order therefore is reversed with directions.
[1476]Factual and Procedural Background
1. The peer review proceedings.
Mir is a physician licensed to practice medicine in California and is a Board-certified cardiovascular and thoracic surgeon. He became a member of the medical staff of the Hospital, and in 1986 was given full privileges in cardiovascular and thoracic surgery and in general surgery.
On June 10, 1988, the hospital’s medical executive committee filed a statement of charges against Mir and recommended his hospital privileges be terminated. Thereafter, three physician committee members of the Hospital’s judicial review committee heard evidence, including the testimony of an independent expert, concerning the charges against Mir. In December 1988, the judicial review committee rendered its findings and decision, found against Mir only on one of the charges involving a particular patient, and recommended Mir be placed on probation for his next ten major abdominal or thoracic surgeries and his next six endoscopies performed at the Hospital.
Mir petitioned the Hospital’s board of directors (Board) for review of the findings and decision of the judicial review committee.
On April 6, 1989, Mir was served with notice the Board had reviewed his case and upheld the recommendations of the judicial review committee. The Board found the Hospital’s bylaws had been complied with regarding the bringing and hearing of charges against Mir so that fair procedure was had. The Board further found the judicial review committee’s recommendations were not arbitrary, capricious, or unreasonable because they were supported by substantial evidence in light of the whole record. The decision of the Board was final and effective immediately. The discipline recommended by the judicial review committee was imposed on Mir and an “805 report” was filed with the appropriate state agency.
2. Mir’s petition for writ of administrative mandate.
Thereafter, Mir filed a petition for administrative mandamus relief. (Code Civ. Proc., § 1094.5.) Mir contended the Hospital had not applied its own standards for corrective action. He further averred there was no substantial evidence to support the corrective action taken against him and the findings made by the judicial review committee. Mir prayed for a writ ordering the Hospital to vacate its disciplinary decision against him and to restore his full staff privileges.
After a hearing on the petition, the trial court took the matter under submission and on January 10,1990, issued its ruling. The trial court granted [1477]the writ, finding “there [was] no substantial evidence that anyone could have done any better . . . than [Mir],” and the determination of poor medical judgment could not stand.
3. The Hospital’s appeal.
The Hospital appealed. Using the “substantial evidence in the light of the whole record” test required by Code of Civil Procedure section 1094.5, subdivision (d), the same standard required of the trial court, Division Two of this court affirmed in an unpublished decision. (Mir v. Charter Suburban Hospital (Oct. 22, 1991) B049830 [nonpub. opn.].)
The Supreme Court denied review.
4. Mir’s subsequent motion under section 809.9.
Following the resolution of the appeal, Mir filed a motion in the trial court for an order awarding attorney fees under section 809.9. Relying on the trial court’s finding of a lack of substantial evidence and the appellate court’s affirmance, Mir contended the Hospital’s conduct in disciplining him and later in defending that discipline was unreasonable and without foundation.
The trial court granted the motion, ruling the Hospital opposed mandamus “unreasonabl[y] and without foundation,” and ordered the Hospital to pay Mir’s attorney fees in the amount of $45,205.
The Hospital appeals that order.
Contentions
The Hospital contends: (1) section 809.9 did not take effect until after the Hospital’s decision became final and the trial court erred in applying it retroactively; (2) section 809.9 does not apply because Mir cannot properly be considered a “substantially prevailing party” in that he did not seek, nor did he obtain, damages, permanent injunctive relief or declaratory relief; (3) merely because the adverse disciplinary action was overturned does not establish the Hospital’s decision to defend the section 1094.5 proceeding was frivolous, unreasonable, without foundation or in bad faith; and (4) affirmance of the trial court’s order awarding Mir attorney fees would impair the ability of hospital medical staffs to protect patients through the peer review process.
[1478]Discussion
1. The retroactivity issue.
a. General principles.
Several rules regarding the application of newly enacted legislation are at issue here. First, a new statute is not to be given retroactive application unless it clearly appears the Legislature so intended. (Aetna Cas. & Surety Co. v. Ind. Acc. Com. (1947) 30 Cal.2d 388, 393 [182 P.2d 159].) Second, whether a particular cost, including attorney fees, is allowed to a litigant depends on the terms of the statute which is in force at the time the judgment is rendered, not on law which existed when the suit was commenced. (Hogan v. Ingold (1952) 38 Cal.2d 802, 814-815 [243 P.2d 1, 32 A.L.R.2d 834]; Stockton Theatres, Inc. v. Palermo (1956) 47 Cal.2d 469, 477 [304 P.2d 7].) However, this second rule does not govern if a provision in the new legislation clearly indicates the Legislature’s intent such costs will not be recoverable in actions pending when the new statute becomes operative. (Hogan v. Ingold, supra, 38 Cal.2d at p. 815.) Application to pending suits of new statutes regarding costs is not regarded as giving retroactive effect to such legislation. {Id., at p. 814.)
b. Section 809.9 applies to actions pending on its operative date.
In Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917 [154 Cal.Rptr. 503, 593 P.2d 200], plaintiffs initially lost their action in the trial court but prevailed on appeal, and the case was sent back for further proceedings. Upon remand, plaintiffs filed a motion in the trial court for attorney fees. At that time, no statutory provision supported their motion, but the plaintiffs argued fees could be awarded under either a “substantial benefit” theory or a “private attorney general” theory. The trial court denied the motion and plaintiffs appealed.
While that case was on appeal, the Legislature enacted section 1021.5 of the Code of Civil Procedure, which provides explicit authority for awards of attorney fees under a private attorney general theory. That legislation became effective while the plaintiffs’ attorney fees appeal was still pending. The Supreme Court held the new legislation was applicable to cases pending on appeal when the statute took effect. (Woodland Hills Residents Assn., Inc. v. City Council, supra, 23 Cal.3d at p. 931; see also, Rumford v. City of Berkeley (1982) 31 Cal.3d 545, 559 [183 Cal.Rptr. 73, 645 P.2d 124].)
Thus, section 809.9 is potentially applicable to the case at bench. The operative date of the enactment was January 1, 1990, and the trial court issued its ruling in favor of Mir on the writ petition on January 10, 1990.
[1479]There is no merit to the Hospital’s contention section 809.9 indicates the Legislature did not intend the statute to apply to actions pending on its operative date. The mere fact section 809.9 became “operative” on January 1, 1990, simply indicates when trial courts could apply the new statute.
We also reject the Hospital’s assertion that if section 809.9 applies to this case, it only applies to attorney fees which Mir incurred after the section became operative, i.e., after January 1, 1990. Nothing in section 809.9 supports such an argument. Further, in Woodland Hills Residents Assn., Inc. v. City Council, supra, 23 Cal.3d 917, the litigants were allowed to seek recovery of attorney fees they incurred at the trial level pursuant to newly enacted Code of Civil Procedure section 1021.5, even though the statute was not enacted until the case was on appeal.
In sum, section 809.9 is fully applicable to actions which were pending on its effective date.
2. The “substantially prevailing party” issue.
Mir and the Hospital espouse greatly different interpretations of the statute.
Based on his success in setting aside the adverse disciplinary action, Mir contends he was a substantially prevailing party in the mandate proceeding.
The Hospital and amicus Hospital Association argue section 809.9 cannot be applicable to this case because the statute defines a substantially prevailing party as one who has obtained an award of damages, permanent injunctive relief or declaratory relief (§ 809.9), and Mir did not obtain any such relief on mandamus.
For the reasons stated below, we reject the Hospital’s argument and conclude Mir was a substantially prevailing party under section 809.9 because he obtained what amounted to declaratory relief from the superior court on administrative mandamus.
Amicus Hospital Association relies on cases which hold that suits for declaratory or injunctive relief are not proper vehicles for challenging administrative decisions. (See, e.g., Hill v. City of Manhattan Beach (1971) 6 Cal.3d 279, 287 [98 Cal.Rptr. 785, 491 P.2d 369]; Viso v. State of California (1979) 92 Cal.App.3d 15, 21 [154 Cal.Rptr. 580].)
While that is a correct statement of the law, it does not meet the issue. When administrative mandamus relief is sought, a plaintiff is in effect [1480]seeking declaratory relief. In Scott v. City of Indian Wells (1972) 6 Cal.3d 541, 544 [99 Cal.Rptr. 745, 492 P.2d 1137], the plaintiffs filed a declaratory relief action to set aside a city’s grant of a conditional use permit. The Supreme Court noted that “[r]eview of planning commission proceedings regarding a conditional use permit is appropriate under Code of Civil Procedure, section 1094.5[,]” rather than by way of a declaratory relief action. (Id., at p. 546.) However, “it [was] unimportant that [the] pleading was not in form a petition for mandamus [,]” as “an action for declaratory relief to review an administrative order should be regarded as a petition for writ of mandate for purposes of ruling upon a general demurrer.” (Ibid., italics added; accord, Hill v. City of Manhattan Beach, supra, 6 Cal.3d at p. 287.)
Thus, a petition for writ of mandate to review an administrative decision in effect seeks declaratory relief as to the rights of the parties. Consequently, a petitioner who prevails on mandamus in setting aside a hospital’s disciplinary decision is entitled at that juncture to seek attorney fees under section 809.9.
Nonetheless, relying on Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465 [131 Cal.Rptr. 90, 551 P.2d 410], the Hospital contends that in cases arising from medical staff peer review decisions, a party may not seek damages or permanent injunctive or declaratory relief without first prevailing in a mandate action.
In that regard, Westlake simply holds “whenever a hospital, pursuant to a quasi-judicial proceeding, reaches a decision to deny staff privileges, an aggrieved doctor must first succeed in setting aside the quasi-judicial decision in a mandamus action before he may institute a tort action for damages.” (Westlake Community Hosp. v. Superior Court, supra, 17 Cal.3d at p. 469, italics added.)
Once a physician has prevailed on mandamus and succeeded in setting aside a hospital’s adverse decision, recovery of attorney fees under section 809.9 at the conclusion of the mandamus proceeding is not inconsistent with Westlake.
Further, the bringing of a motion for attorney fees pursuant to section 809.9 at the conclusion of a mandamus proceeding is proper because a petition for writ of administrative mandate is a “suit” for challenging a [1481]disciplinary action or restriction reportable under section 805.4 While the Hospital contends a motion under section 809.9 must await a Westlake action, a Westlake action is not a “suit... to challenge an action taken or a restriction . . . required to be reported pursuant to Section 805.” (§ 809.9.) The adverse disciplinary action or restriction will have been set aside prior to the Westlake action, in a mandate proceeding, as a prerequisite to the bringing of a Westlake suit.
With respect to the applicability of section 809.9 to mandamus proceedings, we further observe “petitioner” on mandamus is synonymous with “plaintiff’ (Code Civ. Proc., § 1063). Therefore, we attach no significance to the fact section 809.9 fails to utilize the term “petitioner” and that it simply authorizes an award of attorney fees to a successful “plaintiff.”
Under the Hospital’s interpretation, a litigant such as Mir would have to file a Westlake action to recover attorney fees incurred in prosecuting the mandamus proceeding. Not only is such an approach at odds with section 809.9’s provision for an award of attorney fees “[i]n any suit brought to challenge an action taken or a restriction imposed which is required to be reported pursuant to Section 805, ... at the conclusion of the action,” (italics added) but it would require a new round of litigation and consume scarce judicial resources.
For these reasons, we conclude that pursuant to section 809.9, the prevailing party on a petition for writ of administrative mandate may request attorney fees and costs incurred on mandamus at the conclusion of said proceeding.
3. Interpretation of “frivolous, unreasonable, without foundation, or in bad faith” under section 809.9.
Even though we have been able to reconcile the language of section 809.9 to make it applicable to mandamus proceedings, the remaining issue is a confounding one. Although the statute authorizes an award of attorney fees “if the other party’s conduct in bringing, defending, or litigating the suit was frivolous, unreasonable, without foundation, or in bad faith” (§ 809.9, italics added), it is difficult to determine what the legislation requires of a party seeking such an award of attorney fees.
Mir argues for an expansive interpretation enabling physicians such as himself to recover under section 809.9 whenever a hospital’s disciplinary [1482]decision is reversed on a petition for writ of mandate as unsupported by substantial evidence.
The Hospital urges a narrower reading, contending a finding of no substantial evidence does not per se mean an action or defense was unreasonable or without foundation.
Because the language of section 809.9 is ambiguous in this regard, we have done our best to interpret it according to the usual rules of statutory construction, including recourse to legislative history. We conclude a grant of a petition for writ of mandate due to a lack of substantial evidence does not amount to a finding that the defense to the petition was unreasonable or without foundation so as to merit an award under section 809.9.
a. Principles of statutory interpretation.
“Our analysis starts from the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent. [Citations.] In determining intent, we look first to the language of the statute, giving effect to its ‘plain meaning.’ ” (Kimmel v. Goland (1990) 51 Cal.3d 202, 208-209 [271 Cal.Rptr. 191, 793 P.2d 524].) When “ ‘ “statutory language is . . . clear and unambiguous there is no need for construction, and courts should not indulge in it.” ’ ” (DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 601 [7 Cal.Rptr.2d 238, 828 P.2d 140].) The “plain meaning of words in a statute may be disregarded only when that meaning is ‘ “repugnant to the general purview of the act,” or for some other compelling reason . . . .’” (Ibid.)
Because section 809.9 does not define “unreasonable” or “without foundation,” the statute is less than clear as to the precise circumstances under which attorney fees are recoverable, thereby requiring a determination of legislative intent.
b. Mir’s contention and rejection thereof.
Mir does not contend the Hospital’s opposition on mandamus was frivolous or in bad faith.
The thrust of Mir’s claimed entitlement to attorney fees under section 809.9 is that since both the trial and appellate courts determined there was no substantial evidence in the administrative record to support the findings and decision of the judicial review committee and the Board’s affirmance thereof, the Hospital’s decision to defend against Mir’s petition for administrative mandamus relief was “unreasonable” and “without foundation,” as those terms are used in section 809.9.
[1483]We disagree. As explained below, merely because the trial court on mandamus review and the appellate court found no substantial evidence to support the Hospital’s decision—a decision based on the concerns of a multitude of physicians at the levels of the Hospital’s medical executive committee, the judicial review committee and the Board—does not in itself establish the Hospital’s opposition to Mir’s petition for administrative mandamus was “unreasonable” and “without foundation.” A finding of insufficient evidence is not tantamount to an affirmative finding the Hospital’s conduct in resisting mandamus was unreasonable or without foundation.
(1) The Legislature intended in section 809.9 to enact a sanctions provision, not a broad right to attorney fees in favor of the prevailing party on mandamus, as urged by Mir.
In our effort to find guidance as to legislative intent respecting our concerns with the statute, we have taken judicial notice of various legislative materials dealing with the adoption of section 809.9. (Evid. Code, §§ 452, subd. (c), 459; see Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 218, fn. 9 [185 Cal.Rptr. 270, 649 P.2d 912]; Franklin v. Appel (1992) 8 Cal.App.4th 875, 888, fn. 5 [10 Cal.Rptr.2d 759].) Those materials reflect that in 1989, the Legislature was involved in an overhaul of the medical peer review law by way of Senate Bill No. 1211. Section 809.9 was proposed after a query as to possible remedies for improper peer review proceedings. Thereafter, throughout the legislative history of the bill, there was an obvious focus on authorizing an award of attorney fees for conduct by an opposing party which was deemed to be “frivolous” or in “bad faith.”
A revealing document in any analysis of Senate Bill No. 1211 was prepared for the Assembly Subcommittee on the Administration of Justice, dated July 11, 1989. It concludes: “At least four issues remain unresolved” including, inter alia, “Should the bill contain a bilateral attorney fee clause, which compels the payment of the other party’s attorney fees if the peer review proceeding was either brought or defended in bad faith or frivolouslyl” (Italics added.)
The proposed section 809.9 was added to Senate Bill No. 1211 to meet this concern. It stated a substantially prevailing party would be entitled to attorney fees “if the other party’s conduct in bringing, defending, or litigating the suit was frivolous, unreasonable, without foundation, or in bad faith.” (§ 809.9; Sen. Bill No. 1211, as amended July 20,1989, § 9.5, italics added.) This provision was not amended after it was added to Senate Bill No. 1211. Thus, it would appear the attorney fee provision in section 809.9 was in [1484]response to the issue raised in the July 11, 1989, query with respect to bad faith or frivolous conduct.
A subsequent document analyzing Senate Bill No. 1211 (as amended July 20, 1989) for the Senate Third Reading states: “This bill provides . . . [attorney fees may be awarded against either party for the frivolous or bad faith prosecution or defense of a peer review proceeding.” (Italics added.)
We also have available an August 17, 1989, Senate Rules Committee Analysis of Senate Bill No. 1211. In a section captioned ‘"Key Provisions of the Bill," the document explains: “Attorney fees may be awarded against either party for the frivolous or bad faith prosecution or defense of a peer review proceeding.” (Italics added.)
This language is also contained in a September 6, 1989, “Enrolled Bill Report” for the State’s Consumer Affairs Department, which included a recommendation to the Governor. Under “Bill Summary,” the report to the Governor states, inter alia: “Attorneys’ fees may be awarded against either party for the frivolous or bad faith prosecution or defense of a peer review proceeding.” (Italics added.)
Thus, although these four terms, “frivolous, unreasonable, without foundation, or in bad faith” appeared in section 809.9 from its inception, when various reports and analyses were forthcoming, the “frivolous” and “bad faith” language repeatedly was stressed. In view of the concern articulated in the July 11, 1989, analysis, the response thereto in the July 20, 1989, amendment to Senate Bill No. 1211, and the descriptions of section 809.9 in the later materials, including the recommendation to the Governor, it appears the Legislature intended to enact a statute similar to Code of Civil Procedure section 128.5, former section 409.3 (now § 405.38), and sections 437c and 1038, all of which are recognized to embody sanctions provisions. (See Southern Christian Leadership Conference v. Al Malaikah Auditorium Co. (1991) 230 Cal.App.3d 207, 228 [281 Cal.Rptr. 216].)5
[1485]Because section 809.9 contains the same type of language as these other statutes, it is more appropriately construed as a sanctions measure specifically applicable to suits challenging medical peer review decisions. Nothing in the legislative history supports the position section 809.9 was intended to create a broad entitlement to attorney fees to the prevailing party in a suit challenging a peer review decision.
(a) Safeguarding the peer review process.
This limited reading of section 809.9 is consistent not only with the Legislature’s intent but also with the competing need to safeguard the peer review process. The goal of California’s peer review system is to promote the highest standards of medical practice through effective peer review. (§ 809, subd. (a)(3).) To require a hospital to pay a physician’s attorney fees whenever a physician prevails in a mandamus proceeding inevitably would chill the peer review process. Physicians would seek to avoid the onerous burden of serving on peer review committees and would become wary of providing needed candid evaluations of their colleagues (see Cedars-Sinai Medical Center v. Superior Court (1993) 12 Cal.App.4th 579, 586-587 [16 Cal.Rptr.2d 253]), lest their hospitals become liable for attorney fees on the slight showing that was made here. A hospital would have to choose between protecting the public and possibly facing an automatic award of attorney fees under section 809.9, and refraining from taking action. Facing the specter of attorney fees, hospitals would have to consider taking the safer course and ignoring all but the most egregious malfeasance. Thus, the mere grant of Mir’s mandamus petition, if allowed in itself to form the basis of an award of attorney fees in this case, would work to the detriment of crucial peer review bodies established in hospitals throughout the state.
Consequently, a limited interpretation of section 809.9 is consistent not only with the Legislature’s intent but also with the sound public policy of preserving a functioning peer review system.
[1486](2) The mere overturning of the Hospital’s adverse decision on mandamus for insufficiency of the evidence does not establish the Hospital’s conduct in opposing mandamus was unreasonable or without foundation so as to merit sanctions.
As indicated, the Hospital’s medical executive committee charged Mir with failing to use good medical judgment in treating his patient and recommended his hospital privileges be terminated. An evidentiary hearing was held before the three-physician judicial review committee, which heard testimony from an independent expert in gastrointestinal endoscopy criticizing Mir’s treatment. No contrary expert testimony was presented by Mir. The judicial review committee concluded Mir had demonstrated inappropriate judgment. That decision was affirmed by the Hospital’s Board.
Notwithstanding the opposing view held by numerous physicians at various levels of the Hospital proceedings, the trial court granted Mir’s petition for writ of administrative mandate and set aside the Hospital’s finding as unsupported by substantial evidence. The trial court’s determination was affirmed on appeal pursuant to the usual appellate test.
It appears to this court that a leap of logic is required to equate a finding of insufficient evidence with a finding of unreasonable conduct or conduct without foundation on the same evidence so as to allow a $45,205 recovery of attorney fees.
This is because a determination that administrative findings are not supported by “substantial evidence in the light of the whole record” (Code Civ. Proc., § 1094.5, subd. (d)) is not synonymous with a determination there was no supporting evidence. Further, the issue of whether the Hospital’s opposition to Mir’s mandamus petition was unreasonable or without foundation was beyond the scope of the limited inquiry on mandamus. It cannot be inferred from a mere finding of no substantial evidence that the Hospital’s defense in the mandate action was unreasonable or without foundation. Thus, the finding of insufficient evidence does not support the conclusion the Hospital resisted mandamus unreasonably or without foundation.
The “mere fact that medical minds may differ as to what constitutes acceptable levels of proficiency in a given situation does not render unreasonable an initial determination that performance was not acceptable.” (Nicholson v. Lucas (1994) 21 Cal.App.4th 1657, 1670 [26 Cal.Rptr.2d 778], italics added.) Given the single differing opinion held by the accused physician, as contrasted with the consensus held by the Hospital’s physicians, merely because the Hospital’s collective determination did not [1487]withstand trial and appellate court scrutiny does not establish the Hospital proceeded unreasonably or without foundation.
If a finding of no substantial evidence were sufficient to trigger recovery under section 809.9, a prevailing physician on mandamus always would be entitled to attorney fees. Not only is such a sweeping interpretation at odds with the Legislature’s intent in enacting section 809.9, but, as discussed above, it would seriously hamper the peer review process.
Further, if the mere overturning of a hospital’s decision for a lack of substantial evidence gave rise to recovery under section 809.9 on the grounds of “unreasonable” or “without foundation,” the statute’s provision for recovery of attorney fees where a hospital’s action or defense was so lacking in merit as to be “frivolous” or “in bad faith” would be rendered surplusage. Such an interpretation must be rejected because it violates the rule of statutory interpretation that significance must be given to “every word, phrase, sentence and part of an act . . . .” (DeYoung v. City of San Diego (1983) 147 Cal.App.3d 11, 18 [194 Cal.Rptr. 722] ,)6, 7
c. Proceedings on remand.
Mir’s moving papers under section 809.9, in addition to itemizing the request for attorney fees, essentially argued it was “unreasonable” for the Hospital to have defended against the mandate petition, given the lack of substantial evidence to support its disciplinary decision. As explained above, Mir’s showing was inadequate.
Now that we have done our best to clarify the statute, the issue of whether the Hospital’s opposition to mandamus was unreasonable or without foundation so as to merit the imposition of sanctions under section 809.9 is to be redetermined pursuant to a noticed motion. As in motion proceedings generally, the burden of proof on the motion for sanctions will be on Mir, the moving party. (See Corns v. Miller (1986) 181 Cal.App.3d 195, 200 [226 Cal.Rptr. 247].) The scope of the hearing on the sanctions motion is within the trial court’s discretion, as with motions generally. (Lavine v. Hospital of the Good Samaritan (1985) 169 Cal.App.3d 1019, 1028 [183 Cal.Rptr. 520, 646 P.2d 191].) However, nothing in section 809.9 precludes a party [1488]against whom sanctions are sought from subpoenaing and producing evidence and witnesses or otherwise defending against the request. (See Lavine, supra, at p. 1028.)
It is unnecessary to address any remaining arguments of the parties.
Disposition
The order is reversed and the matter is remanded for a new hearing on the motion for attorney fees, guided by the principles set forth in this opinion. Mir’s request for attorney fees on appeal is denied. Each party to bear its own costs on appeal.
Kitching, J., concurred.
All statutory references herein are to the Business and Professions Code, unless otherwise specified.
The California Association of Hospitals and Health Systems (Hospital Association) and the California Medical Association have filed amicus curiae briefs in support of the Hospital and Mir, respectively.
Section 809.9 states: “In any suit brought to challenge an action taken or a restriction imposed which is required to be reported pursuant to Section 805, the court shall, at the conclusion of the action [i.e., the suit], award to a substantially prevailing party the cost of the suit, including a reasonable attorney’s fee, if the other party’s conduct in bringing, defending, or litigating the suit was frivolous, unreasonable, without foundation, or in bad faith. For the purposes of this section, a defendant shall not be considered to have substantially prevailed when the plaintiff obtains an award for damages or permanent injunctive or declaratory relief. For the purpose of this section, a plaintiff shall not be considered to have substantially prevailed when the plaintiff does not obtain an award of damages or permanent injunctive or declaratory relief.”
Section 809.9 makes reference to matters required to be reported pursuant to section 805, i.e., to written reports known as “805 reports.” Subdivision (b) of section 805 states in relevant part: “The chief of staff of a medical or professional staff or other chief executive officer, medical director, or administrator of any peer review body and the chief executive officer or administrator of any licensed health care facility or clinic shall file an 805 report with the relevant agency whenever any of the following actions are taken as a result of a determination of a peer review body: HQ. . . HD (3) Restrictions are imposed, or voluntarily accepted, on staff privileges, membership, or employment for a cumulative total of 30 days or more for any 12-month period, for a medical disciplinary cause or reason.”
The term “ ‘suit’ ” has been broadly construed to denote “ ‘any legal proceeding of a civil kind ....’” (Taranow v. Brokstein (1982) 135 Cal.App.3d 662, 665-666 [185 Cal.Rptr. 532].)
Code of Civil Procedure section 128.5 states in pertinent part: “(a) Every trial court may order a party, the party’s attorney, or both to pay any reasonable expenses, including attorney’s fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.” (Italics added.)
Similarly, the summary judgment statute, Code of Civil Procedure section 437c, states in relevant part: “(i) If the court determines at any time that any of the affidavits are presented in bad faith or solely for purposes of delay, the court shall order the party presenting the affidavits to pay the other party . . . [s]anctions[.]” (Italics added.)
Code of Civil Procedure section 405.38, in the chapter pertaining to expungement of lis pendens, states: “The court shall direct that the party prevailing on any motion under this chapter be awarded the reasonable attorney’s fees and costs of making or opposing the motion [1485]unless the court finds that the other party acted with substantial justification . . . .” (Italics added.)
Also, Code of Civil Procedure section 1038, relating to proceedings under the California Tort Claims Act, requires the trial court to “determine whether or not the plaintiff . . . brought the proceeding with reasonable cause and in the good faith belief that there was a justifiable controversy under the facts and law which warranted the filing of the complaint, ... If the court should deterriiine that the proceeding was not brought in good faith and with reasonable cause, . . . [the prevailing party shall be awarded] all reasonable and necessary defense costs[.]” (Italics added.)
We observe that when a hospital opposes mandamus unreasonably or without foundation, such conduct also would verge on frivolousness or bad faith. Recovery of attorney fees in such a case would be consistent with the Legislature’s contemplation in adopting section 809.9.
If our interpretation of section 809.9 is not what the Legislature intended, the statute certainly needs clarification to avoid a tortured court construction. (See Malibu Committee for Incorporation v. Board of Supervisors (1990) 222 Cal.App.3d 397, 410 [271 Cal.Rptr. 505].)