Failure To Exhaust Administrative Remedies Did Give Rise To Fee Exposure, Because the Petition Was Frivolous In Nature.
In the last few days, we have posted on Business and Professions Code section 809.9, which allows fees to a substantially prevailing party in a peer review suspension of privileges proceeding where the plaintiff’s conduct was frivolous, unreasonable, without foundation, or performed in bad faith. Fee exposure, under this statute, was sustained in Najibi v. Providence Valley Service Area Community Ministry Bd., Case No. B341973 (2d Dist., Div. 2 Sept. 18, 2026) (unpublished), where the principal appellate issue was whether a failure to exhaust administrative remedies satisfied the necessary frivolity/bad faith constructs of the statute. It did.
There, petitioner physician filed a superior court writ petition following suspension of his medical staff privileges and while a peer review termination proceeding was pending, with the lower court sustaining a demurrer and with the appellate court affirming that determination in a prior opinion. Defendants moved for attorney’s fees of $443,520 under section 809.9, but the lower court awarded reduced fees of $288,888 after finding that the writ petition filed before completion of peer review proceedings was frivolous in nature and determining the requested fees were excessive. The appellate court agreed with the lower court’s assessment. It found that petitioner’s failure to exhaust administrative remedies, before a writ petition was even filed, did establish the egregious conduct necessary to impose fees under section 809.9.