Slusher v. Dameron Hospital Assn. CA3

Filed 6/26/15 Slusher v. Dameron Hospital Assn. CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin) ----

LINDA SLUSHER et al.,

Plaintiffs and Respondents, C072875

v. (Super. Ct. No. 39201200278807CUMCSTK) DAMERON HOSPITAL ASSOCIATION,

Defendant and Appellant.

Plaintiffs Linda Slusher and Shawna Victoria filed a lawsuit against Dameron Hospital Association (the hospital) after the hospital treated them for injuries they sustained in a car accident. The hospital collected its agreed-upon fees from plaintiffs’ health insurer, but when plaintiffs reached a settlement with an alleged third-party tortfeasor, the hospital also asserted a lien against the settlement. The third-party’s insurer honored the lien and paid a portion of the settlement proceeds to the hospital. Plaintiffs seek to maintain a class action on behalf of themselves and similarly-situated patients, alleging that the hospital’s lien practice deprives plaintiffs of a full recovery and allows the hospital to recover more than the fees agreed upon with insurers. Plaintiffs

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seek injunctive relief and restitution, alleging that the hospital’s scheme violates California’s Unfair Competition Law by flouting the statutory billing restrictions described in Parnell v. Adventist Health System/West (2005) 35 Cal.4th 595 (Parnell). The hospital filed a special motion to strike the complaint pursuant to Code of Civil Procedure section 425.16, arguing that the complaint is a Strategic Litigation Against Public Participation (SLAPP) action because the hospital’s challenged acts arise from the hospital’s right of free speech and right to petition for redress of grievances. The trial court denied the motion. The hospital appeals the denial of its special motion to strike. The hospital contends it is entitled to anti-SLAPP protection because plaintiffs’ lawsuit challenges the hospital’s communication of its lien right in the context of litigation, and such communication is an act in furtherance of free speech in connection with a public issue. The hospital also contends the trial court erred in denying the special motion to strike because plaintiffs did not prove they are likely to prevail on the merits. We conclude the trial court did not err in denying the special motion to strike. The hospital did not meet its threshold burden to establish that its non-litigation business efforts to collect additional fees from third parties constituted protected speech on a public issue. Case law holds to the contrary. Because the hospital did not make its threshold showing, we do not address whether plaintiffs are likely to prevail on the merits. We will affirm the trial court’s order. BACKGROUND Plaintiffs were insured by Kaiser Permanente (Kaiser), a health insurer with whom the hospital had contracted to provide emergency services for a prescribed fee. On November 13, 2010, Slusher was driving a car that was rear-ended by another car. After the collision, an ambulance transported Slusher’s passenger, Victoria, to the hospital and Slusher followed. The hospital treated both plaintiffs. The hospital accepted