Opinion
B313430
04-20-2023
RANDAL HAWORTH, Plaintiff and Respondent, v. LILLIAN PINHO, Defendant and Appellant.
The Rudd Law Firm and Christopher L. Rudd for Defendant and Appellant. Buckingham, Doolittle &Burroughs, Andrew C. Stebbins; Wolf, Rifkin, Shapiro, Schulman &Rabkin and Matthew Oster for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No.19STCV29227 Judge Mel Red Recana. Affirmed.
The Rudd Law Firm and Christopher L. Rudd for Defendant and Appellant.
Buckingham, Doolittle &Burroughs, Andrew C. Stebbins; Wolf, Rifkin, Shapiro, Schulman &Rabkin and Matthew Oster for Plaintiff and Respondent.
ZUKIN, J. [*]
INTRODUCTION
Appellant Lillian Pinho, a former patient of cosmetic surgeon and respondent Randal Haworth, created a website named creepyplasticsurgeon.com which says the surgeon is unethical, lacks surgical skill and treats employees poorly. In this anti-SLAPP appeal, we conclude Pinho's conduct is protected activity because the statements involve an issue of public interest. Nevertheless, we affirm the trial court's denial of the anti -SLAPP motion because Haworth has demonstrated a probability of prevailing on the merits of his claims.
FACTUAL AND PROCEDURAL BACKGROUND
Dr. Haworth is a licensed physician, with a private practice in the Los Angeles County area specializing in cosmetic surgery. Dr. Haworth has been profiled in print media, including Los Angeles Magazine, the New York Times, and the Wall Street Journal. His Instagram account includes the label "TV's Swan Surgeon," which is a reference to a 2004 Fox network reality television program entitled The Swan, which consisted of 18 episodes in its two-season run wherein women were given extreme makeovers that included several forms of cosmetic surgery. Dr. Haworth was one of the cosmetic surgeons who performed procedures on contestants. His filmography and broadcast media appearances as himself include such productions as 20 Best and Worst Celebrity Plastic Surgery Stories (2009), Porcelain (2008), Larry King Live (2005), On-Air with Ryan Seacrest (4 May 2004), and Anderson Cooper 360° (2 April 2004).
In mid 2018, Dr. Haworth discovered that someone had created a website called "creepyplasticsurgeon.com" that contained various headlines or posts about him with salacious allegations regarding his practice, treatment of employees and patients, and business finances. Dr. Haworth's photo or name were prominently featured in or beside each post or headline, and the top page stated that "[t]his website exposes the truth about plastic surgeons who lie to and abuse their patients." The only subject of the website was Dr. Haworth.
The headlines/posts on the website included statements such as "Haworth files for bankruptcy to get out of paying multiple malpractice suits along with others [and] especially to the pregnant employee he fired," "Beverly Hills Plastic Surgeon Accused of Watching Porn While Performing Surgery, Other Unethical Behavior," "Former Haworth Patient Sues for Ruining Her Face," and "Dr. Haworth's Front Office Manager is a Convicted Felon." Some of the posts or headlines were accompanied by links to court documents.
Dr. Haworth had no idea who published the website and the contact information merely contained an anonymous email address. After initiating the instant lawsuit, and conducting discovery, Dr. Haworth discovered that Lillian Pinho, a former patient and potential business partner, was the author of the website. He thereafter filed an amended complaint, naming Pinho as a defendant.
I. First Amended Complaint
Dr. Haworth's first amended complaint, the operative pleading, was filed on June 30, 2020 and alleged causes of action for (1) false light; (2) defamation; and (3) intentional interference with prospective economic advantage.
The complaint alleged as follows: Dr. Haworth has developed several unique products and services in his career as a plastic surgeon, including the "JawThruster" device, which he patented in 2008. Beginning in 2015, Dr. Haworth sought funding to further the product and bring it to market.
On January 21, 2016, defendant Pinho offered to secure funding and investment in exchange for equity in the product. Pinho did not secure the funding and dropped communication with Dr. Haworth until 2019. At some point prior to April 1, 2019, Pinho published a website called "creepyplasticsurgeon.com," which exclusively refers to Dr. Haworth and includes false allegations of Dr. Haworth engaging in unethical behavior, misconduct towards his staff, and crimes of moral turpitude.
According to a separate declaration prepared by Dr. Haworth in opposition to the anti-SLAPP motion, Pinho was a former patient and thereafter became a friend. Pinho told Dr. Haworth that she specialized in securing funding to bring new products to market.
At or around April 1, 2019, Pinho contacted Dr. Haworth and told him that she could provide financing if Dr. Haworth removed his name from the product and transferred the patents for JawThruster to a separate holding company or similar entity given the negative publicity surrounding Dr. Haworth's name. After making this request, Pinho showed several of Dr. Haworth's business partners the website.
The complaint alleged that Pinho published the website in an effort to damage Dr. Haworth's professional reputation and gain leverage in a business negotiation. It alleged the website was engineered and designed to prominently appear in Internet search engine results for Dr. Haworth's name.
II. The Anti-SLAPP Motion
a. Pinho's Anti-SLAPP Motion
Pinho moved to strike the complaint under the anti-SLAPP statute. She contended the complaint was subject to dismissal under the statute because it arises from "conduct in furtherance of the exercise of the constitutional right . . . of free speech in connection with a public issue or an issue of public interest." (Code Civ. Proc., § 425.16, subd. (e)(4).)
All undesignated statutory references are to the Code of Civil Procedure.
Pinho argued that Dr. Haworth's cosmetic surgery medical practice, which includes both Dr. Haworth and his corporation, was a matter of widespread public interest because: (1) Dr. Haworth, through media and self-promotion, injected himself into the public eye as a topic of conversation; and (2) the competence of a physician is in and of itself a matter of public concern and safety for anyone considering the services of a physician.
Pinho also argued that Dr. Haworth could not establish a probability of prevailing on the merits of his claims because he was, at the very least, a limited public figure and thus would have to prove "actual malice." Pinho further argued that "[m]ost, and probably all, of the allegedly defamatory matter is privileged as being a fair and true report about judicial proceedings or things said in the course thereof."
In support of Pinho's anti-SLAPP motion, Pinho's counsel submitted a declaration and supporting exhibits, stating that Dr. Haworth has been a party in over 50 cases, including ten cases for malpractice filed against him. Counsel also submitted a complaint filed by a former nurse against Dr. Haworth and others, alleging they illegally accessed her private medical information and weaponized the information to, inter alia, harm her in retaliation for her testimony in a malpractice case involving Dr. Haworth. Finally, counsel submitted a federal docket indicating that Dr. Haworth had filed a petition for bankruptcy in 2018 that remained pending as of December 23, 2020.
Counsel for Pinho also submitted a deposition and declaration from two nurses in other pending complaints involving Dr. Haworth, but the trial court sustained objections to these exhibits on hearsay grounds.
The trial court took judicial notice of both the complaint and the federal docket entries for purposes of establishing the existence of these documents, but not for the truth of the statements therein. The complaint included allegations that Dr. Haworth showed pornography to his staff during medical procedures, and additional allegations referenced on the website.
Pinho's counsel, however, did not tie the documents he submitted to any links to documents contained in the posts/articles on the website, nor did counsel submit a copy of the website itself.
b. Haworths Opposition to the Anti-SLAPP Motion
Dr. Haworth filed an opposition to the anti-SLAPP motion, arguing that the website failed to meet the "public interest" prong of section 425.16, subdivision (e)(4) because the information was, at best, only relevant to a small segment of the public; i.e., those contemplating plastic surgery. Dr. Haworth further argued that the website failed to further any discussion of broader issues related to cosmetic surgery or malpractice because the allegations included attacks on his personal life, such as his bankruptcy filings, and Pinho's sole purpose in publishing the site was to harm his reputation with false allegations, rather than to disseminate useful information or resources to the public at large. Dr. Haworth further argued that the website statements could not meet the "public interest" requirements solely based on the fact that he was in the "public eye" as his limited public appearances were insufficient to warrant protection for any and all statements made about him or his private life.
Finally, Dr. Haworth argued that even if the website statements were protected under the anti-SLAPP statute, he would likely prevail on the merits of his claims. In so contending, Dr. Haworth countered Pinho's assertions that the statements were privileged or that he could be deemed a public figure for defamation purposes, arguing he could establish malice, if necessary.
In support of his opposition, Dr. Haworth submitted a printout of the website and a declaration of his own. In his declaration, Dr. Haworth stated beginning in 2017, several employees made false allegations against him as these employees were experiencing their own legal troubles. Because Dr. Haworth believed that Pinho was working in his best interests, he told Pinho about these allegations, stated they were baseless, and provided additional information to prove the baseless nature of the allegations. During a conversation in 2018, Pinho suggested he cede control over the JawThruster to Pinho and potential investors. Dr. Haworth refused, and at that time was in the process of clearing his name with the medical board- and was successful in doing so. He informed Pinho of this development as well.
The printout appears to only contain the primary pages of the website that shows the headlines for each post/article, but no further content or documents that may be linked or referenced under the "read more" or "read the documents by clicking here" tabs.
In late May of 2019, Dr. Haworth discovered the website "creepyplasticsurgeon.com" had been published and contained a picture of him at the very top of the website. In June 2019, Pinho again contacted Dr. Haworth and his business partner Kabir Gambhir and indicated that she had offers for financing but that investors did not want him involved in the project. Dr. Haworth refused to give up his interest in the JawThruster, and reiterated to Pinho that the allegations were false. Only later, after the discovery process, did Dr. Haworth and his attorneys discover Pinho was responsible for the publication of the website.
c. Pinho's Reply to Haworth's Opposition
Pinho replied to Dr. Haworth's opposition by reiterating the arguments made in her anti-SLAPP motion, and raising the additional contention that Dr. Haworth's claims were barred by the statute of limitations because he was made aware of the website as early as mid-2018. In support of the latter contention, Pinho submitted an email she purportedly sent to Dr. Haworth and his business partner in June of 2018, referencing the website and her concerns about allegations surrounding Dr. Haworth. Pinho also submitted a declaration from a former nurse employed by Dr. Haworth who stated that she heard him complaining about the website in June of 2018.
III. Trial Court's Ruling on Anti-SLAPP Motion
In a written decision filed on May 26, 2021, the trial court denied Pinho's anti-SLAPP motion. The trial court found in favor of Pinho on the first prong of the analysis, concluding that the statements were made in connection with a public issue or issue of public interest within the meaning of section 425.16, subdivision (e)(4). The trial court pointed out courts have found "the public has an interest [in] being informed of the qualifications and ethics concerning particular doctors as such information implicates an individual's health and safety." The trial court further found the statements alleged on the website were sufficiently tethered to this topic to warrant anti-SLAPP protection.
As to the merits analysis, however, the trial court found in favor of Dr. Haworth, finding that he had made a sufficient showing that he was likely to prevail on the merits of his claims for purposes of the anti-SLAPP statute. In so concluding, the trial court rejected Pinho's assertions of the fair report privilege, and found that even if Dr. Haworth could qualify as a limited public figure, he made a sufficient "minimal merit" showing that Pinho acted with malice in publishing the website. The trial court rejected Pinho's assertion of a statute of limitations bar on the grounds that it was not timely raised.
Pinho appealed from the trial court's order.
DISCUSSION
"Code of Civil Procedure section 425.16 provides a procedure for the early dismissal of what are commonly known as SLAPP suits (strategic lawsuits against public participation)-litigation of a harassing nature, brought to challenge the exercise of protected free speech rights. The section is thus informally labeled the anti-SLAPP statute." (Fahlen v. Sutter Central Valley Hospitals (2014) 58 Cal.4th 655, 665, fn. 3.) The Legislature enacted section 425.16 in 1992 "out of concern over 'a disturbing increase' in [SLAPP suits]" and, in so doing, "authorized the filing of a special motion to strike to expedite the early dismissal of these unmeritorious claims." (Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21.)
Under section 425.16, a special motion to strike involves a two-step process. First, the defendant must make a prima facie showing that the plaintiffs "cause of action . . . aris[es] from" an act by the defendant "in furtherance of the [defendant's] right of petition or free speech . . . in connection with a public issue." (§ 425.16, subd. (b)(1).) If the defendant satisfies this threshold burden, plaintiff must then demonstrate a reasonable probability of prevailing on the merits. (Ibid.) Both the defendant moving party and the plaintiff must make a prima facie showing concerning their respective burdens. (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 646, disapproved on another point in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5.) Only where a defendant shows that a cause of action is based on protected conduct and the plaintiff fails to show a probability of success on that claim is it subject to dismissal. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89 [cause of action must arise from protected speech or petitioning and lack even minimal merit].)
We review the trial court's decision to grant or deny an anti-SLAPP motion de novo. (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788.) In evaluating the anti-SLAPP motion, we consider both the pleadings and affidavits concerning the facts upon which liability is based. (Symmonds v. Mahoney (2019) 31 Cal.App.5th 1096, 1104.) We accept as true the evidence favorable to the plaintiff. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.)
I. Step One: Protected Activity
In pertinent part, section 425.16 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 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, or (4) 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).)
In her opening brief statement of "issues on appeal," Pinho asserts that one issue is whether her publication of the website was protected under prongs (e)(1), (e)(3), or (e)(4) of section 425.16. However, in the trial court, Pinho's anti-SLAPP arguments were entirely confined to subdivision (e)(4), and she only addresses this prong in the argument section of her opening brief on appeal. Accordingly, we limit our discussion to subdivision (e)(4). (All One God Faith, Inc. v. Organic &Sustainable Industry Standards, Inc. (2010) 183 Cal.App.4th 1186, 1213, fn. 26 [litigant forfeited anti-SLAPP argument not raised below]; see also Cabral v. Martins (2009) 177 Cal.App.4th 471, 478 [anti-SLAPP movant has burden of demonstrating that the acts or statements underlying a cause of action fit within one of the categories described in § 425.16].)
a. FilmOn Decision and Subdivision (e)(4) Criteria
The Supreme Court's decision in FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133 (FilmOn), guides our analysis. In that case, the Court set out a two-part test for the "catchall" provision within subdivision (e)(4). First, we ask what public issue or issues the challenged activity implicates, and second, we ask whether the challenged activity contributes to public discussion of any such issue. (FilmOn, supra, 7 Cal.5th at pp. 149-150.) To assist courts in ascertaining whether speech implicates a public issue or an issue of public interest, the Court in FilmOn incorporated the approach taken in Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 919-924 (Rivero). (FilmOn, supra, at p. 149.) The Rivero decision described three nonexclusive, and sometimes overlapping, categories of statements concerning matters of public interest: (1) persons or entities "in the public eye"; (2) conduct that "could directly affect a large number of people beyond the direct participants"; or (3) "topic[s] of widespread, public interest." (Rivero, supra, 105 Cal.App.4th at p. 924.)
Under the second step, courts must "ask what functional relationship exists between the speech and the public conversation about" the matter of public interest. (FilmOn, supra, 7 Cal.5th at pp. 149-150.) In conducting this examination, a court should consider "context-including audience, speaker, and purpose." (Id. at p. 152.) This requires consideration of context, including the identity of the speaker, the audience sought, the timing and location of the speech, and the apparent purpose of the conduct to determine whether there is "'some degree of closeness'" between the speech and the topic of asserted public interest. (Id. at pp. 142-144, 150.)
In FilmOn, the defendant distributed confidential reports to clients interested in advertising on websites that characterized some of the plaintiff's websites as depicting "'adult content'" or containing copyright infringing material. (FilmOn, supra, 7 Cal.5th at pp. 140-142.) Applying its two part test, the Court found that even if the reports concerned matters of public interest-such as the presence of adult content or copyright infringement on the internet-the defendant had not met its burden to show its alleged wrongful conduct sufficiently contributed to the debate on a public issue to warrant protection under section 425.16, subdivision (e)(4). (FilmOn.com, supra, 7 Cal.5th at pp. 150-153.) The Court pointed out the defendant issued its reports with the alleged false information "not to the wider public-who may well be interested" in the subject matter-"but privately, to a coterie of paying clients," who use the information for "business purposes alone." (Id. at p. 153.) Thus because the alleged wrongful statements about matters of public interest "never entered the public sphere, and the parties never intended it to," the defendant's reports were "tenuously tethered to the issues of public interest they implicate, and too remotely connected to the public conversation about those issues, to merit protection under [section 425.16, subd. (e)(4)'s] catchall provision." (Id. at pp. 153, 140.)
b. Application of FilmOn
In this case, Pinho's website implicated an issue of public interest or public issue. (FilmOn, supra, 7 Cal.5th at pp. 149-150.)
The content of the website implicates the issue of physician competence or ethics, as the statements and pleadings taken from potentially ongoing lawsuits describe. The posts or articles on the website concerned Dr. Haworth's competence to perform his surgical services and his professional conduct, as well as the financial fitness of his medical practice. These are matters about which the public, including current and future patients, have a vital interest. (Yang v. Tenet Healthcare Inc. (2020) 48 Cal.App.5th 939, 947 [physician's allegedly deficient ethics and qualification constituted public issue]; Healthsmart Pacific, Inc. v. Kabateck (2016) 7 Cal.App.5th 416, 429 [consumers "have an interest in being informed of issues concerning particular doctors and health care facilities"]; Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 23 [plastic surgery is a subject of widespread public interest and discussion].)
The website also contributes to the public debate "'in some manner.'" (FilmOn, supra, 7 Cal.5th at p. 150.) By Dr. Haworth's own allegations, the website could be readily accessed by an internet search of his name or practice. Once there, any member of the public could learn about the allegations pertaining to his surgical practice and professional ethics. Thus, the "union of content and context" (id. at p. 154) establishes a sufficient degree of closeness between the website's publication and the message to the public to merit application of the catchall provision in section 425.16, subdivision (e)(4). (Carver v. Bonds (2005) 135 Cal.App.4th 328, 344 [allegedly defamatory statements about physician involved a matter of public concern because they "served as a warning against" the physician's method of self-promotion and would assist patients in choosing doctors]; Gilbert v. Sykes, supra, 147 Cal.App.4th at pp. 19, 23-24 [cosmetic surgery patient's publication of website "mysurgerynightmare.com," recounting her negative results following surgery performed by prominent plastic surgeon contributed to public discussion about the benefits and risks of plastic surgery].)
In his brief, Dr. Haworth argues that Gilbert v. Sykes, supra, 147 Cal.App.4th 13 (referenced above) is distinguishable because the court there found "determinative" that the website also included references to other websites and resources. In that case, however, the court found that the website "contributed toward the public debate about plastic surgery in at least two ways" and set forth the site's reference to additional resources as the "second"- i.e., additional-way the site contributed to the public debate about plastic surgery. (Id. at pp. 23-24.)
Even if we were to conclude otherwise-that the website did not touch on matters of interest to the public at large-Pinho's conduct would still be protected as activity encouraging participation by a limited group in an "ongoing controversy, dispute or discussion." (Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 119 ["[I]n cases where the issue is not of interest to the public at large, but rather to a limited, but definable portion of the public (a private group, organization, or community), the constitutionally protected activity must, at a minimum, occur in the context of an ongoing controversy, dispute or discussion, such that it warrants protection by a statute that embodies the public policy of encouraging participation in matters of public significance"]; Cross v. Cooper (2011) 197 Cal.App.4th 357, 381 [discussing "the Du Charme rule" and noting it has been "uncritically accepted"].)
First, Dr. Haworth is required to update and maintain his licensing requirements and comply with all professional and ethical rules governing his profession. In his declaration, he acknowledged that there were complaints lodged and/or pending against him around the time of the website's publication. Pinho submitted evidence of such complaints and allegations, including matters that were judicially noticed. Second, Dr. Haworth maintains an Instagram account that includes the label "TV's Swan Surgeon" which, at the time of the anti-SLAPP motion, had nearly 78,000 followers and 1,318 posts on the site. Thus, Dr. Haworth's reputation, professional competence, and any matters relevant to his medical practice were part of an ongoing conversation within, at the very least, his community of patients and/or social media followers. (Cf. Gilbert v. Sykes, supra, 147 Cal.App.4th at p. 23 [observing that plastic surgery patient's experience recounted on website was not just of interest to public at large, but "particularly among persons contemplating plastic surgery as a means of looking younger or improving their appearance"]; Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534, 1550 [statements in a church investigation report alleging the plaintiffs had an inappropriate sexual relationship with a minor church member protected because they arose out of an "ongoing discussion" regarding the welfare of children and were of interest to the church community]; Cross v. Cooper, supra, 197 Cal.App.4th at p. 382 [disclosure about a nearby sex offender directly implicated issues concerning the protection of people and would be of interest to those who are living in or considering moving to the area; fact that registered sex offender has ongoing duty to register his residence is sufficient to meet the "ongoing discussion" requirement].)
In his brief, Dr. Haworth argues that his limited celebrity status is analogous to the plaintiff in Albanese v. Menounos (2013) 218 Cal.App.4th 923 (Albanese), and thus, like the plaintiff in Albanese, not "every statement made about him could be considered protected as a matter of public interest." While the latter observation is, as a general principle, correct the application of this principle in this case compels a different result than that in Albanese.
Albanese concerned a defamation action by a celebrity stylist against television personality Maria Menounos after Menounos loudly accused Albanese at a public event of stealing from her while she was employed by Menounos. (Albanese, supra, 218 Cal.App.4th at p. 926.) The appellate court affirmed the denial of Menounos' anti-SLAPP motion, determining that even assuming Albanese was "rather well known in some circles for her work as a celebrity stylist and fashion expert, there is no evidence that the public is interested in this private dispute concerning her alleged theft of unknown items from Menounos." (Id. at p. 936.) In other words, the court found the requisite "'degree of closeness between the challenged statements and the asserted public interest'" lacking because the theft-related statements were too disconnected from the reason Albanese was in the public eye-i.e., her fashion/style expertise. (Id. at p. 936 [noting that "[a]t best, the evidence in this case shows there is some public interest in Albanese based on her profession as a celebrity stylist and style expert"].) Here, the statements on the website published by Pinho implicated Haworth's surgical skills and/or professional competence as a physician-all of which were sufficiently related to the reason the public had an interest in him and/or the reason for Dr. Haworth's media presence.
Dr. Haworth also contends the website content does not warrant anti-SLAPP protection, arguing "[t]he only logical conclusion to be drawn is that [Pinho] crafted and disseminated the Website for reasons unrelated to engaging in a discourse about [Haworth's] competency and without the general populous in mind." Haworth asserts the only individuals "known to have seen the Website are [his] business partners, staff and acquaintances" because Pinho brought it to their attention. However, as previously acknowledged by Haworth himself, the website was both "freely accessible by any member of the public" and "designed to appear prominently in Internet search results for [his] name." (See Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 897-898 [stating that "the Web, as a whole, can be analogized to a public bulletin board" and noting that a website does not lose its character as a public forum even where "each statement posted there expresses only the views of the person writing that statement"]; see also Gilbert v. Sykes, supra, 147 Cal.App.4th at p. 21 [physician alleged that former patient obtained a "sponsored link" to ensure that search for physician's name would bring up a link to her website].)
Moreover, as our high court recently explained in Geiser v. Kuhns (2022) 13 Cal.5th 1238 (Geiser), the FilmOn-based procedure for evaluating whether an issue is in connection with the public interest "calls for an objective inquiry." (Id. at p. 1254.)
In Geiser, supra, 13 Cal.5th 1238, the Court considered whether a demonstration "to protest a real estate company's business practices after the company evicted two long-term residents from their home" implicated a public issue. (Geiser, at p. 1243.) Even though the genesis of the protest was an individual family's eviction-and may have been entirely motivated by their personal desire to repurchase their home-our high court concluded that the protest concerned an issue of public interest for purposes of the anti-SLAPP statute. (Id. at p. 1251 ["It is common knowledge that foreclosures, evictions, and inadequate housing are major issues in communities throughout California"].)
In so concluding, our high court reasoned: "FilmOn's first step is satisfied so long as the challenged speech or conduct, considered in light of its context, may reasonably be understood to implicate a public issue, even if it also implicates a private dispute." (Geiser, supra, 13 Cal.5th at p. 1253; see also id. at p. 1254 [FilmOn s first step "calls for an objective inquiry, without deference to the movant's framing or personal motivations"], italics added.) Similarly, in assessing whether the conduct or speech furthers a public discussion within the meaning of FilmOn's second step criteria (which often overlaps with the first) (id. at p. 1256), the court is "'not concerned with the social utility of the speech at issue, or the degree to which it propelled the conversation in any particular direction . . . .' [Citation.]" (Id. at p. 1255.) Rather, if the context in which the statements were made "'furthered public discussion of the public issues it implicated,'" the second step is equally satisfied. (Ibid.)
Here, for the reasons explained throughout our opinion, the statements regarding Dr. Haworth, posted on a website accessible to the public and discussing matters relevant to his qualifications and ethics as a physician, facilitated discourse on these topics of public interest. (Wilbanks v. Wolk, supra, 121 Cal.App.4th at p. 897 [observing that even if defendant controlled the website at issue, "she [did] not control the Web" and thus others could create their own website or publish articles or information on the same medium regarding any of the topics discussed on defendant's website].) Under these circumstances, any discussion of Pinho's ulterior motives or intent in publishing the website is better suited to the merits-based prong of the anti-SLAPP statute.
II. Probability of Prevailing on the Merits
A. Legal Principles
In light of our conclusion that Pinho's conduct constitutes protected activity, we proceed to address the merits-based prong of the anti-SLAPP statute. At the second step in evaluating an anti-SLAPP motion, the "plaintiff need not prove [his or her] case to the court [citation]; the bar sits lower, at a demonstration of 'minimal merit' [citation]." (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 891.) "At this stage, '"[t]he court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiffs evidence as true, and evaluates the defendant's showing only to determine if it defeats the plaintiff's claim as a matter of law."' [Citations.]" (Ibid.)
B. Analysis
On appeal, Pinho argues error with respect to only two aspects of the trial court's decision: (1) the question of whether Haworth can be deemed a public figure, thereby requiring "actual malice" for his defamation claim; and (2) whether the allegedly defamatory matter is protected under the "fair report privilege." As the trial court pointed out in its final order, when a false light claim is coupled with a defamation claim, the false light claim is essentially superfluous and stands or falls on the success of the defamation claim. (See Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1264.) While Pinho did raise a separate (causation-based) challenge to the intentional interference with prospective economic advantage claim in the trial court, Pinho does not renew that challenge on appeal. We accordingly limit our discussion to the two issues raised and argued by Pinho in her opening brief. (Westsiders Opposed to Overdevelopment v. City of Los Angeles (2018) 27 Cal.App.5th 1079, 1090 [declining to address contention unsupported by argument]; Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647.)
1. General Defamation Principles
"The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage." (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1369.) "In general, . . . a written communication that is false, that is not protected by any privilege, and that exposes a person to contempt or ridicule or certain other reputational injuries, constitutes libel." (Shively v. Bozanich (2003) 31 Cal.4th 1230, 1242.)
"If the person defamed is a public figure, [he or she] cannot recover unless he proves, by clear and convincing evidence . . ., that the libelous statement was made with '"actual malice"-that is, with knowledge that it was false or with reckless disregard of whether it was false or not.'" (Reader's Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 256, citation omitted; Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71, 84.)
2. Fair Report Privilege
"A privileged publication or broadcast is one made: [¶] . . . [¶] By a fair and true report in, or a communication to, a public journal, of (A) a judicial, (B) legislative, or (C) other public official proceeding, or (D) of anything said in the course thereof." (Civ. Code, § 47, subd. (d)(1).)
The fair report privilege "confers an absolute privilege on any fair and true report in, or a communication to, a public journal of a judicial proceeding, or anything said in the course thereof." (Sipple v. Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, 240.) When it applies, the reported statements are "absolutely privileged regardless of the defendants' motive for reporting" them. (Hawran v. Hixson (2012) 209 Cal.App.4th 256, 278; see McClatchy Newspapers, Inc. v. Superior Court (1987) 189 Cal.App.3d 961, 974 (McClatchy).)
The defendant bears the burden of proving the privilege's applicability. (Carver v. Bonds, supra, 135 Cal.App.4th at pp. 348-349.) In so doing, a defendant is required to show (1) that the statements present a fair and true report (2) of a judicial proceeding or of anything said in the course thereof, (3) in or to a public journal. (Civ. Code, § 47, subd. (d).)
As we explained in No Doubt v. Activision Publishing, Inc. (2011) 192 Cal.App.4th 1018 (No Doubt), "[w]e have previously held that '"[a]lthough section 425.16 places on the plaintiff the burden of substantiating its claims, a defendant that advances an affirmative defense to such claims properly bears the burden of proof on the defense."'" (No Doubt, at p. 1029, fn. 4, quoting Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2006) 136 Cal.App.4th 464, 477.) However, we acknowledged that some courts have suggested "that the burden remains on the plaintiff to overcome the affirmative defenses by demonstrating that the defenses are not applicable to the case as a matter of law or by a prima facie showing of facts which, if accepted by the trier of fact, would negate such defenses." (No Doubt, supra, 192 Cal.App.4th at p. 1029, fn. 4.) In light of the evidence presented in this case, the trial court's decision is correct under either standard. (See No Doubt, supra, 192 Cal.App.4th at p. 1029, fn. 4 [noting same]; see also Bently Reserve LP v. Papaliolios (2013) 218 Cal.App.4th 418, 434, fn. 7 (Bently Reserve) [repeating observation from No Doubt regarding "potentially divergent statements in appellate court decisions concerning the operation of affirmative defenses in connection with anti-SLAPP motions" and stating any apparent tension made no difference in case before it].)
In her anti-SLAPP motion, Pinho's entire argument on the privilege consisted of the following statement: "Most, and probably all, of the allegedly defamatory matter is privileged as being a fair and true report about judicial proceedings or things said in the course thereof."
In his opposition, Dr. Haworth pointed out that Pinho failed to explain which statements on the website were protected by the privilege and noted that some of the statements were free standing assertions made without any links to court documents. Haworth further pointed out that some of the posts with links to court documents also contained outside commentary and editorialization or representations that the underlying allegations referenced in the court documents were in fact true, thereby precluding application of the fair report privilege for these statements as well. (See generally Healthsmart Pacific, Inc. v. Kabateck, supra, 7 Cal.App.5th at pp. 435-436 [noting distinction between reporting on allegation and representing allegations as true statements]; Lyon v. Fairweather (1923) 63 Cal.App. 194, 197 [noting "the [fair report privilege] statute does not include as privileged facts outside the record or comments by the writer"].)
In her reply to Haworth's opposition, Pinho simply reiterated the same fair report argument made in her initial anti-SLAPP motion-i.e., "Most, and probably all, of the allegedly defamatory matter is privileged as being a fair and true report about judicial proceedings or things said in the course thereof."
In addressing Pinho's assertion of privilege, the trial court stated the following: "While some information on the subject website concerns various lawsuits against [Dr. Haworth], this is not the entirety of the information on the website. . . . [T]he website contains information regarding how [Dr. Haworth] treats his patients and runs his medical practice. This is not information connected to any judicial proceedings and, therefore, is not privileged within the meaning of Civ. Code § 47."
On appeal, Pinho again repeats her one-sentence assertion that most, if probably not all of the website's statements are privileged, followed by a citation to McClatchy for the proposition that a "reporter is not bound by the straitjacket of the testifier's exact words; a degree of flexibility is tolerated in deciding what is a 'fair report.'" (McClatchy, supra, 189 Cal.App.3d at p. 976.) While this observation may be true, Pinho wholly failed to demonstrate that the statements on the website meet the requirements of the fair report privilege.
That is, in the trial court Pinho neither identified the various posts/articles on the website that satisfy the requirement, nor did she link any of the court documents submitted as exhibits to the various posts on the website. On appeal, Pinho does not dispute the trial court's finding that the website included alleged defamatory content that carried no links to court documents. In addition, she has filed no reply brief in response to Haworth's detailed assertions providing examples of both the stand-alone content on the website, as well as examples of Pinho's additional commentary or editorializing in posts that reference court proceedings and/or fail to accurately or truthfully portray the related court documents.
For example, both in his opposition to the anti-SLAPP motion below, and on appeal, Haworth points out that the website statement that it "exposes the truth about plastic surgeons who lie to and abuse their patients" is not attached to any court documents. Haworth also states that the website includes an article entitled "Former Haworth Patient Sues for Ruining Her Face[,]" which is followed by Pinho's comment that "[t]his woman was disfigured by Dr. Haworth and has filed a lawsuit[,]" thereby asserting as a statement of fact that Haworth disfigured this plaintiff. In another example, Haworth points to the article entitled "Whistle Blower Tells All-More Shocking Facts Revealed" followed by text that reads: "The truth is finally out. Shocking revelations detail just how profound, disturbing, twisted and revolting Dr. Haworth's actions have been" with a link to a complaint. (Italics added.)
On this record, we cannot conclude the trial court erred in rejecting Pinho's assertion of the fair report privilege. (Bently Reserve, supra, 218 Cal.App.4th at p. 434, fn. 7; No Doubt, supra, 192 Cal.App.4th at p. 1029, fn. 4.)
3. Public Figure
On appeal, as below, Pinho argues that Dr. Haworth "is at least a limited public figure, and probably a public figure for all purposes as well, given the extent of his relentless self promotion." Like the trial court, we conclude that even if Haworth qualifies as a limited public figure, he has made a sufficient showing of "actual malice."
A threshold determination in a defamation action is whether the plaintiff is a "public figure." As the United States Supreme Court explained in Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 351, the public-figure designation "'may rest on either of two alternative bases. In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions.'" (Accord, Khawar v. Globe Internat., Inc. (1998) 19 Cal.4th 254, 263.)
Here, Haworth is not an all-purpose public figure because he had not reached "such pervasive fame or notoriety that he becomes a public figure . . . in all contexts." (McGarry v. University of San Diego (2000) 154 Cal.App.4th 97, 113.) Other than the conclusory statement cited above, Pinho does not argue otherwise. (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 ["We are not bound to develop appellants' argument for them"].)
The question of whether Haworth qualifies as a limited public figure is a closer one. To satisfy this designation, the following elements must be present: "First, there must be a public controversy, which means the issue was debated publicly and had foreseeable and substantial ramifications for nonparticipants. Second, the plaintiff must have undertaken some voluntary act through which he or she sought to influence resolution of the public issue. In this regard it is sufficient that the plaintiff attempts to thrust him or herself into the public eye. And finally, the alleged defamation must be germane to the plaintiffs participation in the controversy." (Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569, 1577.)
Here, Pinho has not identified a specific controversy into which Haworth has voluntarily injected himself, but asserts more generally that Haworth has "relentlessly promoted himself in the media" and is "therefore fairly the subject of scrutiny, criticism, and comments on such issues as his fitness to practice plastic surgery and with respect to his business practices." (Cf. Wolston v. Reader's Digest Assn, Inc. (1979) 443 U.S. 157, 166-169 [holding plaintiff was not a public figure where he was dragged unwillingly into the controversy, never discussed the matter with the press, and did not voluntarily inject himself into the controversy].) However, in Gilbert v. Sykes, supra, 147 Cal.App.4th 13, the court determined that a cosmetic surgeon who sought prominence as an expert in plastic surgery, transformed himself into a limited public figure "who invited public attention and comments regarding his surgical practice." (Gilbert v. Sykes, at p. 26.) By this definition, Dr. Haworth may qualify as a limited public figure for purposes of the statements made on the website.
Assuming this is the case, we agree, however, with the trial court's conclusion that Haworth made the requisite showing for malice. In order to prevail on a libel action, public figures must prove by clear and convincing evidence that the libelous statement was made with actual malice -i.e., with knowledge that it was false or with reckless disregard for the truth. (Reader's Digest Assn. v. Superior Court, supra, 37 Cal.3d at p. 256.) Actual malice can be established through circumstantial evidence, such as the defendant's failure to investigate the truth of the allegedly defamatory statements, anger and hostility towards the plaintiff, reliance upon sources known to be unreliable, or known to be biased against the plaintiff. (Id. at pp. 257-258.)
Here, the trial court found there was sufficient evidence of actual malice, including the following evidence: (1) Haworth attested to discussing with Pinho allegations made against him by former employees, asserting that they were baseless and false and subsequently provided additional information to Pinho to prove the falsity of these statements; and (2) Pinho suggested that Haworth cede his control over the JawThruster product to her and other investors. Haworth refused to do so, and subsequently informed Pinho that he had cleared his name with the California State Medical Board; and (3) Pinho published the website and used it in an attempt to convince Haworth's business partner to pursue investors without Haworth's involvement.
On appeal, Pinho does not discuss any of the evidence relied upon by the trial court, but simply asserts that "the bar of proving 'actual malice' for a public figure is so much harder and [Haworth] has not come close to providing sufficient admissible evidence to clear that bar." Nor, has Pinho filed a reply brief addressing any of the evidence outlined by Haworth in his appellate brief on the issue. In light of the evidence identified by the trial court on the issue-and Pinho's failure to challenge this evidence-we leave undisturbed the trial court's finding that Haworth carried his burden of establishing "minimal merit" on this issue. (Wilson v. Cable News Network, Inc., supra, 7 Cal.5th at p. 891; see also Howard v. American National Fire Ins. Co. (2010) 187 Cal.App.4th 498, 523 ["Conclusory assertions of error are ineffective in raising issues on appeal"].)
In sum, Pinho has failed to demonstrate that the trial court erred in finding in favor of Dr. Haworth on the second-prong of the anti-SLAPP statute.
DISPOSITION
The order denying the anti-SLAPP motion is affirmed. Respondent shall recover his costs on appeal.
We concur: CURREY, Acting P. J. COLLINS, J.
[*]Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.