Mir

*1475 Opinion

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.

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 -

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…

I respectfully dissent.

I would affirm the trial court’s award of attorney fees to Mir. While I agree with my colleagues’ resolution of the “retroactivity” and “substantially prevailing party” questions, I part company with them on their construction and application of the controlling statute. I believe the express statutory language used in Business and Professions Code section 809.9 1 (§ 809.9) justifies the award of fees to Mir.

I cannot agree with the majority’s conclusion that section 809.9 is unclear as to the circumstances under which attorney fees are recoverable by a prevailing party simply because section 809.9 does not itself define its use of the terms “unreasonable” and “without foundation.” Section 809.9 clearly sets out four alternative categories under which such fees may be awarded. At least one of them applies here and justifies, as a matter of law, an award of fees in Mir’s favor.

*1489 The majority opinion does not discuss the specific facts on which the trial court’s decision was based, but simply refers, at two separate places, to the fact that there can be differences of medical opinion regarding (1) the quality of a health care provider’s services and…

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.

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…