Wong v. Jing

• Decision Date: 09 November 2010
• Docket Number: No. H034059.,H034059.
• Citation: 189 Cal.App.4th 1354,117 Cal.Rptr.3d 747,10 Cal. Daily Op. Serv. 14, 182
• Court: California Court of Appeals Court of Appeals
• Parties: Yvonne WONG, Plaintiff and Respondent, v. TAI JING, et al., Defendants and Appellants.

189 Cal.App.4th 1354

117 Cal.Rptr.3d 747

10 Cal. Daily Op. Serv. 14,182

2010 Daily Journal D.A.R. 17,112

Yvonne WONG, Plaintiff and Respondent,

v.TAI JING, et al., Defendants and Appellants.

No. H034059.

Court of Appeal, Sixth District, California.

Nov. 9, 2010.

**753 Mark Goldowitz, Berkeley, Paul Clifford, California Anti-SLAPP Project, for Defendants and Appellants, Tai Jing et al.

Marc L. Terbeek, Walnut Creek, John E. Terbeek, Law Offices of Marc L. Terbeek, for Plaintiff and Respondent, Yvonne Wong.

RUSHING, P.J.

*1359 I. Statement of the Case

Plaintiff Yvonne Wong (Wong), a pediatric dentist, filed an action against defendants Tai Jing (Jing), his wife Jia Ma (Ma), and the Web site Yelp.com (Yelp) based on allegedly false assertions contained in a review posted on Yelp that criticized the dental services Wong had provided to Jing and Ma's young son. The defendants responded by filing an anti-SLAPP motion under **754 Code of Civil Procedure section 425.16 to strike Wong's claims.¹ The trial court denied the motion, and defendants now appeal from that order. ( § 425.16, subd. (i).)

We reverse.

II. Anti-SLAPP Motion Procedure

Section 425.16 is called the anti-SLAPP statute because it allows a defendant to gain early dismissal of causes of action that are designed primarily to chill the exercise of First Amendment rights. ( Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1568, 31 Cal.Rptr.3d 368; Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1069-1070, 112 Cal.Rptr.2d 397.) In pertinent part, the statute provides, "A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike ...." (§ 425.16, subd. (b)(1).)

Acts " 'in furtherance of' " these rights include "(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral *1360 statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." (§ 425.16, subd. (e), italics added.)

In ruling on an anti-SLAPP motion, the trial court engages in a two-step process. "First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant's burden is to demonstrate that the act or acts of which the plaintiff complains were taken 'in furtherance of the [defendant]'s right of petition or free speech under the United States or California Constitution in connection with a public issue,' as defined in the statute. [Citation.] If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim." ( Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67, 124 Cal.Rptr.2d 507, 52 P.3d 685 ( Equilon ); accord, Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733, 3 Cal.Rptr.3d 636, 74 P.3d 737.) Both the defendant moving party and the plaintiff must make a prima facie showing to satisfy their respective burdens. ( Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 646, 49 Cal.Rptr.2d 620, disapproved on another point in Equilon, supra, 29 Cal.4th at p. 68, fn. 5, 124 Cal.Rptr.2d 507, 52 P.3d 685.) Only when a defendant shows that a cause of action is based on protected conduct and the plaintiff fails to show a likelihood of success on that claim is it subject to dismissal. ( Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192, 25 Cal.Rptr.3d 298, 106 P.3d 958; see Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89, 124 Cal.Rptr.2d 530, 52 P.3d 703 [cause of **755 action must arise from protected speech or petitioning and lack even minimal merit].)

III. The Pleadings and the Anti-SLAPP Motion

A. The Complaint

In her complaint, Wong asserted causes of action for libel per se and intentional and negligent infliction of emotional distress.² In support of those claims, Wong alleged that in 2006, she filled a cavity in Jing and Ma's son's *1361 tooth, and before doing so, she advised them that the silver amalgam contained mercury, and Ma acknowledged this information. Wong further alleged that in 2008, after examining the boy again, she discovered cavities on the right side of his mouth and scheduled another appointment because she thought he might have a few more cavities. However, Jing and Ma consulted a different dentist. Wong alleged that, Jing and Ma published " slanderous complaints" about her on Web sites, including Yelp, complaining that Wong had not warned them about the mercury, she had misdiagnosed their son's case, and she had improperly used a general anesthetic "that is outside her scope of practice" and for which she could "lose her license." Wong alleged that Jing, Ma, and Yelp knew that the statements on the Web site were false and had no legal excuse for making them.

Wong attached a copy of the Yelp review. It read as follows: "1 star rating.... [¶] Let me first say I wish there is [ sic ] '0' star in Yelp rating. Avoid her like a disease! [¶] My son went there for two years. She treated two cavities plus the usual cleaning. She was fast, I mean really fast. I won't necessarily say that is a bad thing, but my son was light headed for several hours after the filling. So we decided to try another dentist after half a year. [¶] I wish I had gone there earlier. First the new dentist discovered seven cavities. All right all of those appeared during the last half a year. Second, he would never use the laughing gas on kids, which was the cause for my son's dizziness. To apply laughing gas is the easiest to the dentist. There is no waiting, no needles. But it is general anesthetic, not local. And general anesthetic harms a kid's nerve system. Heck, it harms mine too. Third, the filling Yvonne Wong used is metallic silver color. The new dentist would only use the newer, white color filling. Why does the color matter? Here is the part that made me really, really angry. The color tells the material being used. The metallic filing, called silver amalgams [ sic ], has a small trace of mercury in it. The newer composite filling, while costing the dentist more, does not. In addition, it uses a newer technology to embed fluoride to clean the teeth for you. [¶] I regret ever going to her office. [¶] P.S. Just want to add one more thing. Dr Chui, who shares the same office with Yvonne Wong is actually decent."

B. The Anti-SLAPP Motion, Opposition, and Reply

In their anti-SLAPP motion, defendants claimed that posting the review was protected conduct because the review concerned an issue of public *1362 interest and was made in a public forum. They further **756 claimed that Wong could not show a probability of success on her claims.

Defendants submitted, among other things, copies of various Web site pages to show that the Internet is an important source of public information about oral hygiene, dentists, and dentistry. Defendants also submitted Web site pages concerning the use of silver amalgam to fill cavities and whether it is safe because it contains mercury.

In opposing the motion, Wong claimed that posting the review was not protected conduct. She argued that the review reflected only "a dispute between private parties about the manner in which private services were rendered." Wong further argued that she would probably succeed on her claims.

In her declaration, Wong stated that in 2006, she advised Jing and Ma that their son needed a filing, advised them that she would use silver amalgam containing mercury, provided a data sheet concerning the use of amalgam, and obtained written consent. Thereafter, she conducted the procedure using nitrous oxide because the boy resisted needles. Ma orally consented and watched the procedure. Wong stated that the boy exhibited no ill effects from the gas, and his parents never complained about its use. According to Wong, nitrous oxide is an analgesic, not a general anesthetic; and the use of both the gas and amalgam are approved by the American Dental Association (ADA).

Wong further declared that in April 2008, Jing and Ma cancelled a scheduled appointment without sufficient notice and were charged for it. In May, she took x-rays of the boy, found cavities, and recommended fillings and additional x-rays. Jing and Ma asked for a Saturday appointment, but she declined because she reserves that day for simpler procedures due to staffing difficulties. When Jing and Ma complained, Wong waived the missed-appointment fee. Nevertheless, Jing and Ma terminated her service, demanded dental files, and went to another dentist. Thereafter, Jing and Ma posted their negative review.

Wong said that she asked Yelp to delete the review because it was libelous. Yelp advised her to buy a business account so she could manage the content of her listing. When she declined and asked again for the deletion, Yelp claimed immunity for the review and advised her she needed a court order. In response, Wong filed her lawsuit.

In addition to her declaration, Wong submitted documentary information, including the fact sheet and consent forms acknowledged by Ma concerning the use of amalgam, copies of pages from the ADA Web site, an article from its *1363 journal, and reference articles from the American Academy of Pediatric Dentistry concerning the...