Peros v. The Permanente Medical Group

Filed 11/13/26 CERTIFIED FOR PARTIAL PUBLICATION* IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR JAMES PEROS, Plaintiff and Respondent, A174067 v. THE PERMANENTE MEDICAL (Alameda County Super. Ct. GROUP, INC., No. 24CV088773) Defendant and Appellant. Plaintiff James Peros filed this action against his former employer, The Permanente Medical Group (TPMG), and unspecified related entities after TPMG discharged him. TPMG filed a special motion to strike the complaint—or, alternatively, specific allegations—as a strategic lawsuit against public participation (SLAPP) under Code of Civil Procedure section 425.16. Known as the anti- SLAPP statute, section 425.16 “allows [a] defendant[ ] to seek early dismissal of unmeritorious claims arising from protected speech and petitioning activities.” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1004 (Bonni I).) The procedure consists of two steps. (Baral v. Schnitt (2016) 1 Cal.5th 376, 396 (Baral).) At the first, the defendant bears the burden of identifying allegations of protected activity and the claims supported by those * Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part II. allegations. (Ibid.) At the second, the plaintiff must demonstrate that such claims are legally sufficient and factually substantiated. (Ibid.) When a court grants an anti-SLAPP motion, it does so without leave to amend. (Medical Marijuana, Inc. v. ProjectCBD.com (2020) 46 Cal.App.5th 869, 897– 898 (Medical Marijuana).) Applying the two-step process, the trial court struck a number of specifically challenged allegations, effectively striking Peros’s claims that arose from protected activity. But the court determined that the complaint also included claims that did not arise from protected activity. It declined to strike those claims. On appeal, TPMG contends that once the trial court excised the protected-activity allegations at step two, no cognizable claim remained. At that point, TPMG argues, the anti-SLAPP statute required the trial court to strike the entire complaint. TPMG rests this argument on its contention that a demurrer is an inadequate procedure to address the insufficient remaining claims because it allows the court to grant Peros leave to amend. Leave to amend in these circumstances, TPMG continues, would undermine the anti- SLAPP statute’s purpose of providing quick dismissal of a meritless complaint targeted at protected activity. We agree with the trial court that claims resting exclusively on allegations of unprotected activity are not subject to step two of the anti- SLAPP procedure, even if the defendant argues that they are legally insufficient. We therefore conclude that the court did not err by refusing to strike the entire complaint. In the alternative, TPMG appeals the trial court’s refusal to strike several specific allegations. Finding no error, we affirm. 2  BACKGROUND I. Our summary of the facts is based on Peros’s verified complaint and the declarations submitted by the parties in connection with TPMG’s special motion to strike. Peros is a gay man and licensed physician. He worked for and was a shareholder of TPMG for about 15 years1 until his 2022 termination. Peros alleges that, in 2018, TPMG acted in ways that demonstrated bias against gay men generally and against him as a gay man in particular. He also alleges that, in 2018 or 2019, he alerted TPMG to instances of misconduct by a heterosexual physician. To his knowledge, TPMG did not investigate the issues. He was told to drop his inquiries about whether the misconduct had been reported to appropriate authorities and about why gay physicians were being treated differently from heterosexual physicians. He made known his intention to report the misconduct to law enforcement. In October 2021, TPMG placed Peros on paid administrative leave— effectively restricting him from providing patient care—pending investigation of allegations relating to illegal drug use. About two months later, in January 2022, TPMG notified him that it had preliminarily concluded that he had used drugs and that the use had impaired his work performance. TPMG reiterated that it had restricted him from providing patient care pending final resolution of the investigation. He requested a peer review hearing to contest the restriction. In May 2022, after the investigation had concluded but before the peer 1 The complaint states that Peros was hired in 2007 and terminated in 2022, which is a span of 15 years. Elsewhere the complaint suggests that Peros was an employee for about 20 years. The discrepancy does not affect the appeal. 3 review hearing, the physician in charge of the matter recommended that TPMG terminate Peros’s employment. TPMG advised Peros that if he did not resign within a week, he would be suspended without pay. He did not resign. He requested a second peer review hearing to contest the termination recommendation. TPMG consolidated the two requested peer review hearings. In December 2022, several months before the consolidated peer review hearing began, Peros sent TPMG a letter asserting that he had been constructively discharged. TPMG treated the letter as a resignation. It also terminated his employment on the ground that he had violated TPMG’s sick leave policy. Based on these actions, Peros requested that TPMG confirm that it was canceling the pending consolidated peer review hearing as moot. TPMG responded that it remained prepared to provide Peros with the consolidated hearing unless he waived his rights to it. Peros did not waive his rights. The consolidated hearing began in March 2023. When TPMG asked Peros questions about drug use, he refused to answer. In response, the hearing panel concluded that Peros had failed to “ ‘appear and proceed’ ” as required by policy. As a consequence, it deemed him to have voluntarily accepted the October 2021 patient-care restriction and the May 2022 termination recommendation. In May 2023, after reviewing the panel’s report, the TPMG board of directors affirmed the restriction and the recommendation. II. Peros sued, asserting seven causes of action: (1) retaliation for opposing illegal activities (Lab. Code, § 1102.5); (2) discrimination in violation of the Unruh Civil Rights Act (Civ. Code, § 51 et seq.); (3) negligent 4 misrepresentation (Civ. Code, § 1572); (4) intentional misrepresentation (Civ. Code, § 1572); (5) wrongful constructive discharge or termination based on discrimination and whistleblower retaliation; (6) violation of California’s unfair competition law (Bus. & Prof. Code, § 17200 et seq.); and (7) breach of fiduciary duty. The complaint alleged multiple adverse or retaliatory acts by TPMG, including the October 2021 patient-care restriction, an improper investigation, the May 2022 termination recommendation, improper withholding of exculpatory evidence, an unfair and improper peer review process, the termination based on the purported sick-leave violation, and the board of trustees’ May 2023 approval of the termination recommendation. III. TPMG filed an anti-SLAPP motion to strike the entire complaint, or, alternatively, to strike specific allegations about protected conduct. It argued that all of Peros’s claims rested on protected conduct, primarily the peer review process and related communications. It further argued that Peros could not establish a probability of success on the merits of any claim. At step one, the trial court agreed that the anti-SLAPP statute applied to allegations targeting TPMG’s peer review proceedings. It disagreed, however, with TPMG’s contention that all of Peros’s claims rested on the protected activity. It concluded that some retaliation and discrimination claims—within the complaint’s broader cause-of-action categories—arose exclusively from unprotected conduct. (See Bonni I, supra, 11 Cal.5th at p. 1012 [to the extent plaintiff alleges various acts as basis for relief, each act defines a separate claim].) It also determined that a number of challenged allegations did not meet the step-one threshold. Among those, the court determined that three allegations did not satisfy step one because they 5 targeted conduct that occurred before Peros requested a peer review hearing. At step two, the court struck most of the protected-activity allegations identified at step one, determining that Peros had failed to establish a probability of success on the merits of the claims based on those allegations. The exception was an allegation that a peer review panel member had been removed because she had lied under oath during voir dire. For that allegation, the court concluded that Peros had carried his burden of production. The court categorically declined to strike unprotected-conduct claims based on Peros’s failure to show their legal sufficiency. The court reasoned that it could not consider striking claims that had not passed the step-one threshold.2 DISCUSSION We review an order denying an anti-SLAPP motion de novo. (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067 (Park).) I. TPMG contends that the anti-SLAPP statute required the trial court to strike Peros’s entire complaint because no facially sufficient claim remained after the two-step process. We disagree. Our examination of TPMG’s contention starts with Baral, supra, 1 Cal.5th 376. There, the court observed that a plaintiff may plead multiple claims for relief under a single “cause of action” heading. (Id. at p. 382.) Some of those claims may rest on allegations of protected activity, while 2 After the trial court issued its ruling on the special motion to strike, it ruled on a demurrer. The parties refer to the demurrer ruling, but we do not consider it because it is neither relevant to, nor within the scope of, our review of the trial court’s anti-SLAPP ruling. 6 others may rest exclusively on allegations of unprotected activity. (Id. at pp. 381–382.) The court held that a defendant may bring an anti-SLAPP motion against the protected-activity claims. (Id. at p. 382.) But such a motion “does not reach the claims based on unprotected activity.” (Ibid.) After Baral, the court in Park, supra, 2 Cal.5th 1057 discussed when a claim rests on protected activity. It noted that “courts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.” (Id. at p. 1063.) A claim moves to step two of the anti-SLAPP analysis only if protected activity supplies at least one of the claim’s essential elements. (See id. at pp. 1063–1064.) Bonni I provides an example. The court described the plaintiff as having alleged multiple claims for retaliation, each resting on a different retaliatory act but all apparently sharing the same unprotected-activity allegations supporting the other claim elements. (Bonni I, supra, 11 Cal.5th at pp. 1004, 1008–1010.) At step one, the court explained, the defendants bore the burden of separately showing that each alleged retaliatory act rested on protected activity. (See id. at p. 1012.) The claims for which the defendants carried that burden would, on remand, move to step two. (See id. at pp. 1026–1027.) The others would not. (See ibid.) The Bonni I court confirmed that the anti-SLAPP statute potentially applies to cases arising from hospital peer review. (Bonni I, supra, 11 Cal.5th at p. 1014.) But it cautioned that not all activity related to peer review is protected. (Id. at pp. 1016, 1021–1023.) For example, the court concluded that the statute did not shield physician disciplinary decisions made in connection with peer review, such as suspension and termination of hospital privileges. (Id. at pp. 1019, 1023.) 7  Here, Peros’s retaliation and discrimination claims are like the retaliation claims addressed in Bonni I. For each such claim, a separate allegation supplies the element of a retaliatory or adverse act. The trial court concluded that some of the alleged retaliatory or adverse acts were protected, such as delays in the peer review process. In accord with Bonni I, it concluded that others were not, such as the October 2021 patient-care restriction, the May 2022 termination recommendation, and the December 2022 and May 2023 terminations. (Id. at pp. 1019, 1023.) TPMG does not meaningfully contest those conclusions. TPMG also does not suggest that protected-activity allegations supplied other elements of Peros’s retaliation or discrimination claims, such as that TPMG employed him, he performed his job competently, bias was a substantial motive for TPMG’s actions, or he reported discrimination and misconduct. TPMG nonetheless contends that all of Peros’s claims targeted protected activity because they were all based in part on peer-review allegations. TPMG ties this characterization to the practice in Peros’s complaint of incorporating all preceding allegations at the start of each count, including the later-stricken allegations about peer-review communications and conduct. Plaintiffs commonly use this convention so that they do not repeat the same story under every new heading. The practice does not mean that each claim within a count rests on every preceding allegation. A single allegation independently may supply a claim element even when another allegation may supply the element for a separate claim under the same count heading. (See Bonni I, supra, 11 Cal.5th at p. 1012; accord Baral, supra, 1 Cal.5th at pp. 381–382.) As the trial court recognized, Peros pled separate claims that did not arise from the generally-alleged protected peer-review activity. 8  TPMG also states that “[o]nce [Peros’s] allegations targeting protected conduct are excised, his remaining allegations do not plead any cognizable cause of action.” The statement is misleading to the extent it suggests that excising protected-activity allegations caused the remaining claims to fail on their face. While this was true for Peros’s misrepresentation claims, which the trial court struck, it was not true for remaining claims pled under other counts. According to TPMG, other defects—unrelated to the removal of protected-activity allegations—doom those claims. For the retaliation and discrimination claims, TPMG does not attack the sufficiency of the alleged unprotected retaliatory and adverse acts. Instead, regarding retaliation, TPMG argues that the alleged whistleblowing was not close enough in time to the adverse acts to create an inference of retaliation.3 Regarding discrimination, TPMG argues that Peros alleges no specific facts that support an inference that a TPMG decision maker had a discriminatory intent. (TPMG points to no such protected-activity allegations that were excised.) For the Unruh Civil Rights Act, TPMG asserts only that the statute does not cover employment discrimination. And the unfair competition claims, TPMG argues, fail on these same grounds because they are derivative of the other remaining claims. Based on the principles expressed in Baral and further explained in Park and Bonni I, we agree with the trial court that the anti-SLAPP statute does not apply to claims based exclusively on unprotected activity, even when a defendant argues that those remaining claims could not withstand a demurrer. (See Baral, supra, 1 Cal.5th at pp. 381–382; Park, supra, 3 The alleged protected adverse acts also were outside the time frame argued by TPMG. 9 2 Cal.5th at pp. 1063–1064; Bonni I, supra, 11 Cal.5th at pp. 1012, 1026– 1027.) A claim that does not rest on protected activity—regardless of whether it is otherwise arguably defective—does not clear the step-one threshold and thus is not within the anti-SLAPP statute’s purview. The procedure for attacking such a claim is a demurrer. We are not persuaded by TPMG’s argument that this conclusion reflects a misunderstanding of Baral. It is true that in Baral, unlike in the present case, the defendant conceded that the plaintiff could make a prima facie case supporting some claims based solely on unprotected-activity allegations. (See Baral, supra, 1 Cal.5th at p. 384.) But we do not agree that Baral’s reach is limited by that fact. The court noted the concession in the opinion’s “Background” (ibid.); it did not rely on it in its “Discussion” (see id. at pp. 384–397). Moreover, the court repeatedly instructed that step two is limited to claims resting on protected-activity allegations. For example, the court noted that “the Legislature authorized a special motion to strike only claims that arise from protected speech or petitioning activity” (id. at p. 395); “the plaintiff is required to establish a probability of prevailing on any claim for relief based on allegations of protected activity” (ibid.); and at step two “the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated” (id. at p. 396). We also disagree with TPMG that our conclusion conflicts with Norman v. Ross (2024) 101 Cal.App.5th 617 (Norman). There, television producers filed a special motion to strike a screenwriter’s complaint alleging various claims based on the producers’ alleged use of the screenwriter’s ideas in making a television series. (Id. at pp. 624, 633–636.) The parties agreed that making a television series constituted protected activity. (Id. at p. 647.) The 10 trial court nonetheless concluded that a claim for breach of implied-in-fact contract did not pass the step-one threshold because the claim arose from the defendants’ failure to pay—an unprotected activity. (Id. at pp. 647–649.) The court of appeal disagreed. (Id. at p. 650.) Citing Park, supra, 2 Cal.5th at page 1063, it noted that a claim arises from alleged activity that supplies any single element of a claim. (Norman, at p. 650.) The claim at issue required use of the screenwriter’s ideas. (Ibid.) To supply this element, the screenwriter alleged that the producers used her ideas to make the television series—a protected activity. (Ibid.) The court of appeal agreed with the trial court that the screenwriter’s other claims rested on the same protected activity. (Id. at pp. 644, 651–654.) Thus, all the screenwriter’s claims progressed to step two. (Id. at p. 654.) At step two, the Norman court concluded that every claim failed because the screenwriter did not demonstrate a probability of prevailing on her allegation that the producers used her ideas. (Norman, supra, 101 Cal.App.5th at pp. 657, 665–669.) The court also concluded that various claims failed for independent reasons not related to the protected-activity allegations. (Id. at pp. 656, 666, 668.) For example, the screenwriter failed to demonstrate that there was an implied-in-fact contract (id. at p. 656), that the producers received her ideas under an agreement of confidentiality (id. at p. 666), and that the screenwriter changed her position in reliance on any promise made by a producer (id. at p. 668). The court held that the producer’s “special motions to strike should have been granted in full.” (Id. at p. 624; see also id. at pp. 669, 670.) Under our reading and application of Baral, TPMG contends, “the only remedy available in Norman would have been excision of the plaintiff’s causation allegations. The allegations comprising the remaining elements of 11 her claim were ‘based . . . upon unprotected conduct’ and thus would have ‘remain[ed] in the Complaint’ subject to further amendment.” Not so. In Norman, protected activity supplied an essential element—causation—of every claim and therefore every claim proceeded to step two. (Norman, supra, 101 Cal.App.5th at pp. 644, 654.) At step two, the Norman court properly examined whether each claim was legally sufficient and whether the plaintiff made a prima facie factual showing sufficient to sustain a favorable judgment. (Id. at p. 654.) Under our reading of Baral, the Norman court could strike an entire claim (not just a particular element) when the plaintiff did not carry her burden as to that claim. (See id. at pp. 624, 669, 670.) Since the plaintiff failed to carry her burden as to any claim (id. at pp. 656, 665–669), the Norman court appropriately instructed the trial court to strike the entire complaint (see id. at p. 670). In the present case, unlike in Norman, some claims do not advance past the step-one threshold to step two. Those claims thus survive the two-step process, precluding the trial court from striking the complaint in full. TPMG conjures the prospect that a cunning plaintiff intentionally may include inadequate unprotected-activity allegations in a complaint that targets protected activity in order to insulate the complaint from being stricken in whole as a SLAPP. In our view, the anti-SLAPP statute does not prevent a plaintiff from doing so. The statute aims only at claims arising from protected activity. (See Baral, supra, 1 Cal.5th at pp. 381–382; Park, supra, 2 Cal.5th at pp. 1063–1064; Bonni I, supra, 11 Cal.5th at pp. 1012, 1026–1027.) With or without accompanying protected-activity allegations, a plaintiff may plead unprotected-activity claims without activating anti- SLAPP protection. A defendant may attack any such claim by a demurrer. If the claim is legally insufficient, it will be dismissed. If the plaintiff cannot fix 12 the defect(s) by amendment, the claim ultimately will be dismissed without leave to amend. TPMG argues that granting leave to amend defective claims that rest on unprotected activity undermines the anti-SLAPP statute’s purpose of providing quick dismissal. We are not persuaded. The “central purpose” of the statute is to “screen[ ] out meritless claims that arise from protected activity, before the defendant is required to undergo the expense and intrusion of discovery.” (Baral, supra, 1 Cal.5th at p. 392, italics added.) The statute is not concerned with weeding out deficient claims that arise from unprotected activity. (See id. at p. 382.) Medical Marijuana, supra, 46 Cal.App.5th 869, cited by TPMG, is not on point. There, the parties agreed that all of the plaintiffs’ claims arose from protected conduct, and the court concluded at step two that the complaint should have been stricken in its entirety. (Id. at pp. 885, 895, 896– 897, 901.) The court denied the plaintiffs’ request for leave to amend their stricken claims to allege different protected activity. (Id. at p. 900.) The decision does not address the issue raised by TPMG in this case—whether the anti-SLAPP statute bars leave to amend legally deficient claims that are based on unprotected activity. Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068 (Simmons) also does not persuade us that TPMG is correct. There, the trial court granted a special motion to strike an entire complaint brought on the ground that all the “causes of action” arose from protected activity. (Id. at pp. 1071– 1072, 1074.) The trial court also denied the plaintiff’s request for leave to amend so that he could remove protected-activity allegations from its stricken causes of action. (Id. at p. 1073.) The court of appeal affirmed, reasoning that “the anti-SLAPP statute makes no provision for amending the 13 complaint once the court finds the requisite connection to First Amendment speech.” (Ibid.) It further expressed concern that “[a]llowing a SLAPP plaintiff leave to amend the complaint once the court finds the prima facie showing has been met would completely undermine the statute by providing the pleader a ready escape from [the anti-SLAPP statute’s] quick dismissal remedy. Instead of having to show a probability of success on the merits, the SLAPP plaintiff would be able to go back to the drawing board with a second opportunity to disguise the vexatious nature of the suit through more artful pleading. This would trigger a second round of pleadings, a fresh motion to strike, and inevitably another request for leave to amend.” (Ibid.) It is unclear whether the stricken claims in Simmons all arose from protected activity. If they did, Simmons is distinguishable for the same reasons as Medical Marijuana, supra, 46 Cal.App.5th 869. To the extent the stricken “causes of action” included both claims arising from protected activity and claims arising from exclusively unprotected activity—as TPMG argues—we view the decision differently. Simmons was decided before Baral explained that a special motion to strike may target only the claims within a “cause of action” that arise from protected activity. (Baral, supra, 1 Cal.5th at p. 384.) Under Baral, any claims arising exclusively from unprotected activity should not have been examined under step two and would not have implicated the policy concerns expressed by the Simmons court. We agree with Peros that this understanding of Baral advances the dual goals of preserving a plaintiff’s ability to seek relief on unprotected grounds and shielding a defendant’s protected activities. Because we conclude that Peros’s unprotected-activity claims do not pass the step-one threshold, we do not reach TPMG’s arguments that Peros cannot demonstrate a likelihood of prevailing on them. 14  II. TPMG argues in the alternative that the trial court erred by failing to strike several specific allegations. Peros does not respond, so we review the challenged allegations without his input. First we address allegations that the trial court found to involve unprotected activity because they concerned acts that occurred before Peros requested the peer review hearings. Then we address the allegations concerning a peer review panelist who was removed because she lied under oath. A. Peros alleges that TPMG (1) “commenced two different disciplinary proceedings against Dr. Peros which TPMG alleged involved an offense that required reporting to the California Medical Board,” (2) subjected Peros to “an improper investigation,” and (3) “demanded a confession from Dr. Peros [about previous drug use] without specifying the allegations against [him].” Conduct covered by the litigation privilege, codified at Civil Code section 47, subdivision (b), generally qualifies as protected activity under the anti-SLAPP statute. (Flatley v. Mauro (2006) 39 Cal.4th 299, 322–323.) The privilege provides immunity from civil liability for statements and communications made during judicial or other official proceedings. (Civ. Code, § 47, subd. (b).) It “ ‘is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards.’ ” (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241.) A statement made before the start of an official proceeding may be protected but “only when it relates to litigation that is contemplated in good faith and under serious consideration.” (Id. at p. 1251.) The litigation privilege and the anti-SLAPP act do not necessarily protect actions as they do written or oral statements. (Bonni v. St. Joseph Health 15 System (2022) 83 Cal.App.5th 288, 302 (Bonni II).) As to an assertedly protected action, the question is whether it is “ ‘communicative in its essential nature.’ ” (Ibid.) TPMG argues that the litigation privilege, and therefore the anti- SLAPP act, apply because TPMG undertook the alleged activity while anticipating a peer review proceeding. But TPMG does not assert that it intended or expected a peer review hearing at the time of the acts, nor does it point to supporting declaration statements by the physician who was in charge of the case. Were the facts presented here sufficient to support TPMG’s argument, then the litigation privilege presumptively would apply to all disciplinary actions whenever they could be followed by a peer review proceeding. The first two allegations also do not qualify for protection because they describe noncommunicative disciplinary acts. (Bonni I, supra, 11 Cal.5th at pp. 1021–1023; see also Bonni II, supra, 83 Cal.App.5th at p. 302.) The allegations do not include any statements made in connection with starting the disciplinary proceeding or conducting the investigation. As to these three allegations, TPMG has not carried its burden. B. Peros alleges that a peer review panel member selected by TPMG was removed after voir dire revealed that she had lied under oath. Nonetheless, “TPMG took no adverse action against [the panel member] in contrast to their treatment of Dr. Peros.” The trial court determined that these allegations described protected activity. But it concluded that the verified allegations and a declaration statement by Peros carried Peros’s burden at step two because TPMG offered no contrary evidence. The court noted that the allegations were relevant to Peros’s retaliation and discrimination claims. 16  We agree with the trial court’s refusal to strike the allegations, but we base our conclusion on a different ground. “[A] claim is not subject to a motion to strike simply because it contests an action or decision that was arrived at following speech or petitioning activity . . . . Rather, a claim may be struck only if the speech or petitioning activity itself is the wrong complained of.” (Park, supra, 2 Cal.5th at p. 1060.) “[T]he defendant in a discrimination suit,” for example, “must show that the complained-of adverse action, in and of itself, is an act in furtherance of its speech or petitioning rights. Cases that fit that description are the exception, not the rule.” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 890.) Speech or conduct relating to a peer review hearing remains admissible if it is probative of a defendant’s motive for the adverse action but is not the adverse action itself. (Bonni I, supra, 11 Cal.5th at p. 1019.) Here, neither the panel member’s allegedly untrue statement, her removal, nor TPMG’s failure to discipline her, are adverse acts for which Peros claims relief. The (surviving) wrongs complained of in this case include the October 2021 patient-care restriction, the May 2022 termination recommendation, and the December 2022 and May 2023 terminations. The allegations at issue are merely probative of TPMG’s motive for those wrongs. They therefore do not satisfy the step-one requirement that a claim arise from protected activity. (See Code Civ. Proc., § 425.16, subd. (a); Bonni I, supra, 11 Cal.5th at p. 1019; Wilson v. Cable News Network, Inc., supra, 7 Cal.5th at p. 890; Park, supra, 2 Cal.5th at p. 1060.) TPMG contends that the allegations should have been stricken because the litigation privilege bars all civil actions based on perjury. But again, Peros’s action is not based on the panel member’s perjury or TPMG’s response—that is, Peros does not allege that those actions caused him harm. 17  We conclude that TPMG has not met its step-one burden as to these allegations. DISPOSITION The judgment is affirmed. Peros is entitled to recover his costs on appeal. GOLDMAN, J. WE CONCUR: STREETER, Acting P. J. GORDON, J.* * Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 18 Trial Court: County of Alameda Superior Court Trial Judge: Honorable Elizabeth Riles Counsel for Plaintiff and Prometheus Partners, Eduardo G. Roy Respondent: Huff Legal, Michel R. Huff Counsel for Defendant and Bartko Pavia, Louise Ann Fernandez, Appellant: Chad E. DeVeaux, Josiah R. Jenkins 19