California's anti-SLAPP statute is “designed to protect defendants from meritless lawsuits that might chill the exercise of their rights to speak and petition on matters of public concern.” Wilson v. Cable News Network, Inc., 7 Cal.5th 871, 883–4 (2019).

“Evaluating what qualifies as an issue of ‘public interest' inherently requires consideration of the public/private distinction, a notoriously malleable standard.” Woodhill Ventures, LLC v. Yang, 68 Cal.App.5th 624, 631 (2021).

“[A] matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest,” and a “person cannot turn otherwise private information into a matter of public interest simply by communicating it to a large number of people.” Rand Resources, LLC v. City of Carson, 6 Cal.5th 610, 621 (2019). Issues of public interest include statements about a person or entity in the public eye; statements that could directly affect a large number of people beyond the direct participants; and statements about a topic of widespread public interest. Id.

Patient's Negative Online Review of Doctor

Jill Cudia was a patient of Premier Brain & Spine Institute, Inc., and Dr. Edward Rustamzadeh. Ms. Cudia posted negative reviews about them on Yelp in 2019. They then sued her for defamation and false light. In response, she filed an unsuccessful anti-SLAPP motion. Premier Brain & Spine Institute, Inc. v. Cudia, No. H048332, 2022 WL 3222097 (Cal. App. Ct. Aug. 9, 2022) (unpublished).

Anti-SLAPP

Courts evaluate anti-SLAPP motions in a two-step process. First, the defendant has the burden to show the challenged claims arise from protected activity. If that burden is met, then the plaintiff must show a likelihood of prevailing on the merits.

Defendant simply left negative reviews after receiving what she believed was neglectful treatment. Indeed, in her discussion of the merits of plaintiffs' claims (in step two of the anti-SLAPP analysis), defendant herself states the comments “never go beyond her subjective judgment and her experience” with plaintiffs.

The Court found that the defendant's public forum statements were not protected activity under the anti-SLAPP statute because they were not made in connection with an issue of public interest.

Nature of Forum Does Not Automatically Confer Public Interest

Her statements are not protected just because they were made on a consumer review website. The nature of the forum does not automatically confer public interest. What matters is whether the comments touch upon a broader topic of widespread public interest.

Affecting More Than the Direct Participants

Here, the defendant “simply left negative reviews after receiving what she believed was neglectful treatment” relating to her spinal surgery and post-surgical treatment without inviting or promoting public discussion about any broader issue of public interest.

Defendant argues her reviews were “in the public interest” because they made statements about plaintiffs' billing practices, advertising, post-surgery care, the outcome of her surgery, and communication regarding treatment. But defendant fails to show how statements about her individual dispute with plaintiffs would directly affect a large number of people beyond the direct participants.

Statements that impact a broad segment of society or are part of some large goal to provide consumer protection information are more likely to be protected. See Wong v. Jing, 189 Cal.App.4th 1354 (2010) (accused comments “implicitly dealt with the more general issues of the use of nitrous oxide and silver amalgam, implied that those substances should not be used in treating children, and informed readers that other dentists do not use them”). But see Creative Care, Inc. v. McEntyre, No. B308643, 2022 WL 3442623 (Cal. App. Ct. Aug. 17, 2022) (if “a single doctor's qualifications and competence are a matter of public interest, then an entire facilities' qualifications and competence surely also so qualify”) (unpublished); Yang v. Tenet Healthcare Inc., 48 Cal.App.5th 939 (2020) (statements made by a medical entity and medical professionals about a doctor's qualifications, competence, and medical ethics constituted protected activity); Healthsmart Pacific, Inc. v. Kabateck, 7 Cal.App.5th 416, 429 (2016) (the public, as a consumer of medical services, has an interest in issues concerning doctors and health care facilities); Kibler v. Northern Inyo County Local Hospital Dist., (2006) 39 Cal.4th 192, 201 (2006) (conduct of licensed physicians is matter of public significance).

Provably False Statement of Fact

Defamation requires that a provably false statement of fact, and not just a statement of opinion, was made. Wong, 189 Cal.App.4th at 1369. Professor Eric Goldman has noted that consumer reviews often contain “obvious hyperbole” (such as calling the doctor a “butcher”) which is never really helpful to other consumers but still qualifies a protected opinion.

The question is whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact. Id. at 1370.

Three statements in her reviews contained potentially provably false factual assertions:

(1) her contention that personal assistant Saito “diagnosed [defendant] over the phone telling [her she] had sciatica and to see [defendant's] primary care physician”; (2) her contention that Rustamzadeh “swore on [her] first unpaid office visit that [he] would indeed fix [her]”; and (3) her contention that Rustamzadeh “rushed [her] into surgery, without doing a thorough analysis, and [he knew that he] failed as a result.” As each of those statements involve situations where defendant was present, plaintiffs can prove actual malice—i.e., that defendant knew her statement was untrue or that she acted with reckless disregard for its truth—by proving that the statements were false

The Court also found that “[b]ecause plaintiffs demonstrate sufficient probability of prevailing on their defamation causes of action, the trial court properly denied the anti-SLAPP motion.”

Links to Outside Commentary

Professor Eric Goldman previously has noted that “California's consumer review anti-SLAPP cases appear to make a distinction between a ‘pure' consumer review solely addressing the vendor's performance, which isn't a matter of public concern, and a review that provides additional commentary on other issues, such as how to choose a vendor in that class, which does qualify as a matter of public concern.”

Further discussion by Professor Goldman about doctors' lawsuits against patients for consumer reviews can be hound here.

The attorneys at Thomas P. Howard, LLC litigate intellectual property cases nationwide including in Colorado.