Reasonableness Of Fees, Special Fee Shifting Statutes: $47,513.67 Fee Award To Hospital and Medical Staff Affirmed On Appeal In Peer Review Proceeding

$71,270.50 Request, Reduced, Was Proper, With Appellant’s Technical Arguments Rejected.

               In Nowzari v. Torrance Memorial Medical Center, Case No. B321862 et al. (2d Dist., Div. 2 May 2, 2024) (unpublished), a plaintiff physician’s hospital privileges were restricted by a peer review body, triggering physician’s filing of a petition for a writ of the mandate to overturn the board’s decision although the petition was denied.  Hospital and medical staff defendants were awarded statutory fees of $47,513.67, two thirds of the request, under Business and Professions Code section 809.9.

               The 2/2 DCA affirmed.  Section 809.9 empowers a trial court, when litigating a writ petition challenging a peer review decision, to award costs inclusive of reasonable attorney’s fees to the party who “substantially prevails” on any claim that is “frivolous, unreasonable, without foundation or in bad faith”—a sanctions provision.  A claim is “without foundation” where it is factually or legally baseless, groundless, or without support, and a claim is “unreasonable” where no reasonable attorney would find it tenable.  (Smith v. Selma Community Hospital, 188 Cal.App.4^th 1, 30-32 (2010).)  Because these components are determined objectively, they are subject to de novo review.  Independently reviewing the record, the appellate court found no error.  It also dismissed technical arguments we have seen raised in many fee or sanctions proceedings in the past:  (1) attorney’s fees need not be pled except in cases of default (Carlsbad Police Officers Assn. v. City of Carlsbad, 49 Cal.App.5^th 135, 142 n. 3 (2020)); and (2) the trial court was not divested of jurisdiction to determine a fee/sanctions award once physician filed his notice of appeal (Code Civ. Proc., § 916; Robertson v. Rodriguez, 36 Cal.App.4^th 347, 360 (1995)).