Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. CIVMS700190, William Jefferson Powell IV and Bert L. Swift, Judges.
Howard P. Levy, in pro. per., for Plaintiff and Appellant.
Fenton & Nelson and Harry Nelson for Defendant and Respondent.
OPINION
HOLLENHORST, Acting P. J.
Plaintiff Howard P. Levy (Levy) appeals from the trial court’s order granting defendant Madelaine Pearson’s (Pearson) special motion to strike Levy’s complaint pursuant to Code of Civil Procedure section 425.16 (anti-SLAPP motion), Levy contends the trial court erroneously ruled that his action against Pearson is one arising from protected activity and that the evidence is insufficient to demonstrate a probability of prevailing on the merits of his claims.
While we note that defendant’s name is spelled “Madaline” Pearson throughout the trial court papers, the correct spelling of her name appears to be “Madelaine” Pearson.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
I. PROCEDURAL BACKGROUND AND FACTS
On June 11, 2007, Levy initiated this action against Pearson, alleging slander per se and intentional infliction of emotional distress. Levy alleged that in March 2007, Pearson told one of his employees she was no longer under Levy’s care because she felt Levy was “‘inappropriate’” with her and she was “‘uncomfortable’” around him. Levy further claimed that Pearson was telling people she had been “‘drugged’” by him so he could take advantage of her.
Pearson answered the complaint and brought a special motion to strike it pursuant to section 425.16. She argued that his complaint arose from her exercise of free speech in the interest of the public and that Levy could not establish a probability of prevailing on his causes of action for slander per se and intentional infliction of emotional distress because those claims were completely baseless. Pearson sought attorney fees and costs.
In support of the anti-SLAPP motion, Pearson offered her declaration. According to the declaration, Pearson was Levy’s patient from July 2005 through mid-December 2006. She sought treatment to relieve “arthritis-related pain” in her back and neck and for her allergies. Levy treated her with steroid injections two or three times a week and performed chiropractic adjustments.
Pearson claimed that sometime in 2006, Levy began acting strangely towards her, causing her to feel uncomfortable. She claimed that her appointments would be scheduled as the last of the day, despite her repeated requests for earlier appointments. She declared that, sometime around November as Levy was performing a chiropractic adjustment on her, she felt his hands drift from her back into her groin. When she said, “Dr. Levy, that’s quite enough,” he stopped the treatment. As she was leaving, he walked her to the office door. Pearson reminded him that he was a married man.
Pearson’s declaration described another office visit where Levy’s hands began to drift again, from Pearson’s back to her breasts. She told Levy, “‘I don’t need a breast exam.’” Levy again walked her to the office door. She left his office by elevator, and when the elevator door opened, Levy was standing there. In response to his statement that he should walk her to her car, Pearson told him that her car was parked in a lighted area and she did not need his help.
Pearson declared her belief that Levy increased her medications to the point where she felt drugged and unable to protect herself. She denied telling any of Levy’s current, former or prospective patients that she felt she was drugged so that he could take advantage of her. However, Pearson did tell an acquaintance, Diane Findley, another patient of Levy, that she thought back injections could be dangerous. Pearson stated she did this after finding out that Findley was in a wheelchair following back injections at Levy’s office.
According to Pearson, during her last office visit sometime toward the end of 2006, Levy told her, “‘You live in a fortress.’” She claimed that he admitted driving to her home the evening of the previous office visit. Pearson did not tell any of Levy’s current, former or prospective patients, or anyone she knew to be living in Levy’s community or working in his area, that she felt he was stalking her. In January 2007, Pearson began to see a new physician.
Although the declaration states “January 2006” we assume this to be a typographical error, given the fact that Pearson was a patient of Levy’s during all of 2006.
Pearson’s declaration noted that about May 2007 she ran into one of Levy’s employees. When asked why she had not been to see Levy in a long time, Pearson replied she felt uncomfortable around him and had decided to see another physician. Also in May, Pearson claimed she “contacted the Medical Board . . . to complain about [Levy’s] behavior.” Shortly thereafter, she received a complaint form and an authorization for release of her health information, which she stated that she filled out on May 18, 2007, and faxed and mailed back to the medical board on that day. Pearson’s declaration was the only evidence offered in support of her motion to strike.
Levy opposed the anti-SLAPP motion. He submitted his own declaration, along with the declarations of Cueppie Brennan, Diane Findley, Theresa Murphy, Kim Carpenter, and Levy’s wife. Levy also attached several pages of a deposition from an unrelated civil action. According to Levy, to the extent that Pearson was given the last appointment of the day, it was because she was known for not showing up or canceling her appointment at the last minute. However, Levy’s wife (who was also the office manager) instructed the staff to continue scheduling Pearson’s appointments for earlier in the afternoons or late mornings. Levy stated that Pearson’s “osteopathic manipulations” were always performed in the same room with the door open. Also, according to Levy, Pearson invited him to do things with her, such as attend AA meetings or come to her house for an open house. He declined. In the spring of 2007, Levy learned from a former employee that Pearson was saying things about him. The other declarations supported Levy’s version of Pearson’s contacts with his office, along with his claim of slander.
Pearson replied to Levy’s opposition and moved to strike portions of the declarations offered in opposition to the anti-SLAPP motion.
Following a hearing, the trial court ruled as follows: “[Pearson] meets her initial burden of establishing a prima facie showing that [Levy’s] causes of action arise from an act of [Pearson] in furtherance of [her] rights of petition or free speech in connection with a public issue. This matter qualified as a SLAPP . . . . Therefore, the complaint must be dismissed unless [Levy] can prove he has a reasonable probability of prevailing, with admissible evidence.” The trial court took the remaining issue under submission and later issued a tentative ruling. The parties were allowed to be heard on the tentative ruling.
On or about October 22, 2007, Levy filed a written response to the tentative ruling. He also filed a separate statement of undisputed material facts and request for judicial notice. His pleadings were supported by his declaration. On October 26, Pearson responded by objecting to Levy’s response, moving to strike portions of Levy’s declarations, and requesting attorney fees.
On October 30, 2007, the trial court held that all declarations filed after October 16 were untimely and not considered. Following oral argument, the trial court issued its statement of intended decision, which granted the anti-SLAPP motion. It stated: “[T]he court found that [Pearson] met her initial burden of establishing a prima facie showing that the cause of actions [sic] arises from acts of [Pearson] which are covered by [Code of Civil Procedure] § 425.16(e)(1) and [Code of Civil Procedure] § 425.16(e)(4). [¶] . . . [¶] The complaint therefore must be dismissed unless [Levy] can prove he has a reasonable probability of prevailing with admissible evidence. After a thorough review of all of the evidence presented in a light most favorable to [Levy], this court cannot conclude that [Levy] has substantiated a legally tenable claim through a facially sufficient evidentiary showing. Specifically, [Levy] fails in two aspects. First, the complaint alleges defamation based on certain statements of opinion and not fact. Secondly, [Levy’s] declaration and evidence presented in response to this motion to strike is lacking a concrete denial of the truth of [Pearson’s] allegations. [¶] . . . [¶] . . . [Levy] has not substantiated a legally tenable claim through a facially sufficient evidentiary showing of slander. Accordingly, [Pearson’s] motion to strike is granted.” At a later date, the trial court award $13,965 to Pearson for her costs and attorney fees.
II. STANDARD OF REVIEW
Section 425.16 “sets out a procedure for striking complaints in harassing lawsuits that are commonly known as SLAPP suits (strategic lawsuits against public participation), which are brought to challenge the exercise of constitutionally protected free speech rights.” (Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 196, fn. omitted.) “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 or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1); see Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 307.) Such a motion is commonly referred to as an anti-SLAPP motion.
An anti-SLAPP motion is intended to weed out unsubstantiated causes of action, so that the plaintiff need only “rebut the presumption [of intent to chill protected activity] by showing a reasonable probability of success on the merits.” (Fox Searchlight Pictures, Inc. v. Paladino, supra, 89 Cal.App.4th at p. 307; accord, Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61.)
“The anti-SLAPP law involves a two-step process for determining whether a claim is subject to being stricken. In the first step, the defendant bringing an anti-SLAPP motion must make a prima facie showing that the plaintiff’s suit is subject to section 425.16 by showing the defendant’s challenged acts were taken in furtherance of his or her constitutional rights of petition or free speech in connection with a public issue, as defined by the statute. [Citation.]
“After the defendant satisfies the first step, the burden shifts to the plaintiff to demonstrate there is a reasonable probability he or she will prevail on the merits at trial. [Citation.] In this phase, the plaintiff must show both that the claim is legally sufficient and there is admissible evidence that, if credited, would be sufficient to sustain a favorable judgment. [Citations.] In making this assessment, the court must consider both the legal sufficiency of and evidentiary support for the pleaded claims, and must also examine whether there are any constitutional or nonconstitutional defenses to the pleaded claims and, if so, whether there is evidence to negate any such defenses. [Citation.] (McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 108-109 (McGarry).)
“Upon review of an order granting or denying a motion pursuant to section 425.16, the appellate court independently reviews whether a complaint arises out of the defendant’s exercise of a valid right to free speech and petition, and, if so, whether the plaintiff established a reasonable probability of prevailing on the complaint. [Citations.]” (Drum v. Bleau, Fox & Associates (2003) 107 Cal.App.4th 1009, 1017; see also Tutor-Saliba Corp. v. Herrera (2006) 136 Cal.App.4th 604, 609-610.)
III. DOES THE COMPLAINT FALL WITHIN THE SCOPE OF THE ANTI-SLAPP STATUTE?
A. Does the Pleading Arise from Protected Activity?
Levy contends the trial court erred in finding that the action arises from protected activity. He notes “The false and defamatory statements at issue in this case include the assertion that [he] stalked [Pearson], conspired with others to stalk [her], acted inappropriate [sic] in touching [her] and drugged [her] to take sexual advantage during the course of medical treatment.” He argues that “[m]aking an accusation of stalking . . . never reported to authorities, but, instead ‘published’ to the general public . . . [is] not entitled to the protection of the anti-SLAPP statute when . . . the assertions have no substantiation of proof and can be proven false.” In support of her motion, Pearson offers only her self-serving declaration. In her initial declaration, there is no mention of her complaint to the medical board. In fact, the motion itself fails to reference any complaint or investigation by the medical board. Instead, the motion states that Levy’s lawsuit seeks to “chill [Pearson] from exercising her protected right and inform the public about [Levy’s] conduct.” While there is a reference to Pearson’s “act in furtherance of her right of free speech,” there is nothing identifying what such act entails. In the summary of the facts, there is no mention that Pearson filed a complaint with the Medical board. At best, she suggests that her act “was informing others of issues of public interest, specifically [Levy’s] improper conduct in ‘drugging’ his patient, attempting to improperly touch her and [Levy’s] substandard of care.”
Levy opposed Pearson’s motion and offered an excerpt from his deposition in another case, along with several declarations. In his deposition, Levy denied Pearson’s claims. According to the declaration of one of Levy’s employees, in March 2007, Pearson saw the employee and called out her name. As the two were talking, Pearson accused Levy of acting inappropriately with her, making sexual advances while she was being treated by him, and stalking her. One of Levy’s patients stated that in February 2007, Pearson approached her at the grocery store and made the same accusations of stalking, drugging, and inappropriate conduct. Pearson further told the patient that Levy was “‘practicing substandard medicine and he should not be practicing medicine.’”
In reply to Levy’s opposition, Pearson, for the first time, claimed she filed a complaint with the medical board in May 2007. She stated, “In or about early May, 2007, before I ever even contacted Dr. Greenberg, I contacted the Medical Board . . . to complain about Dr. Levy’s behavior. I informed the board of Dr. Levy’s inappropriate touching and unethical alterations to my treatment (overdosing). [¶] . . . Soon after I contacted the Board[,] [t]he Board forwarded to my home a complaint form and an authorization for the release of my health information. I filled those forms out on May 18, 2007. I faxed and mailed those forms back to the Medical Board on that day.” She further states, “In or about mid-August, 2007, I again contacted the Board to check on the status of my complaint against Dr. Levy. An investigator informed me that the matter had been transferred to the Board’s San Bernardino district office, and the matter would be pursued by a local investigator out of that office.” However, Pearson has failed to offer any documentary evidence to support her declaration. There is no copy of her complaint, nor is there any information as to what she actually complained about. Even if we were to assume Pearson did contact the medical board, according to the record before this court Pearson made public statements about Levy prior to making such complaint.
In her responding brief, Pearson states: “Contrary to [Levy’s] claim, there were on-going proceedings concerning [Levy’s] conduct, i.e., [Pearson’s] complaint to the Board and the pending Malpractice Action.” Again, there is no documentary evidence of Pearson’s complaint to the medical board other than her declaration stating she filed such complaint. Regarding the malpractice action, we assume Pearson is referring to the lawsuit filed by Levy and his wife against his wife’s surgeon. However, that action is Levy’s wife’s malpractice case against Dr. Greenberg. The only common element between this case and the one involving Dr. Greenberg is the fact that Dr. Greenberg and Pearson share the same attorney and law firm.
Notwithstanding the above, Pearson argues that her statements were made in connection with an issue of public interest. She argues that Levy is a physician in a position of trust, and his “conduct is held to a higher standard than an average person and affects the public.” Pearson notes that she made her statements to a current employee and current patient of Levy, as well as the medical board. Thus, she analogizes her case to that in Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534 (Terry). In Terry, the plaintiffs, a church minister and his wife, sued for libel, slander and infliction of emotional distress following a report by a church group and meetings thereon addressing allegations the plaintiffs engaged in an inappropriate sexual relationship with a minor member of the congregation. The Terry court held the communications in issue clearly warranted anti-SLAPP protection because they involved the important societal interest of protecting children from predators. (Id. at p. 1547.) In contrast to the factual situation in Terry, the question of whether Pearson’s statements concern an issue of public interest is not as clear.
Although section 425.16 failed to define “an issue of public interest,” “‘“[a] few guiding principles may be derived from decisional authorities. First, ‘public interest’ does not equate with mere curiosity. [Citations.] Second, a matter of public interest should be something of concern to a substantial number of people. [Citation.] Thus, a matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest. [Citations.] Third, there should be some degree of closeness between the challenged statements and the asserted public interest [citation]; the assertion of a broad and amorphous public interest is not sufficient [citation]. Fourth, the focus of the speaker’s conduct should be the public interest rather than a mere effort ‘to gather ammunition for another round of [private] controversy . . . .’ [Citation.] Finally, ‘those charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure.’ [Citation.] A person cannot turn otherwise private information into a matter of public interest simply by communicating it to a large number of people. [Citations.]”’” (McGarry, supra, 154 Cal.App.4th at p. 110.)
Given these above considerations, we are not convinced that all of the statements made by Pearson qualify for anti-SLAPP treatment. To the extent Pearson stated that Levy acted inappropriately towards her and stalked her, such claims do not concern a substantial number of people. However, a claim that he performed substandard medical care may be classified as a concern. It is difficult to tell what complaints Pearson raised to the medical board because she failed to offer a copy of her complaint, any correspondence from the medical board, or any written documentation of any sort involving the medical board. Furthermore, the record shows that Pearson stopped seeing Levy in December 2006. She spoke poorly of him to others in March 2007. Two months later, in May, she contacted the medical board. Accordingly, to the extent that Pearson’s statements refer to Levy’s inappropriate contact and stalking, we are unable to find that they qualify for anti-SLAPP treatment. However, to the extent her statements refer to Levy’s substandard medical care, they raise a concern that qualifies for anti-SLAPP treatment. Given the mixture of what appears to be unprotected activity with protected activity, we will err on the side of caution and assume that Pearson’s statements qualify for anti-SLAPP treatment. (Scott v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404, 420 [“When a cause of action arises from constitutionally protected speech, [Code of Civil Procedure] section 425.16 applies and the question of whether the speech is false must be examined when plaintiff demonstrates a probability of success on the merits”].)
B. Is there a Reasonable Probability that Levy Will Prevail on the Merits?
Having assumed that Pearson established a prima facie case that she was sued after exercising her First Amendment right to speech in connection with a public issue, we next determine whether there is a reasonable probability that Levy would prevail on his claims. Levy has the burden of establishing this point. To meet this burden, he “‘“must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” [Citations.] In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant [citation]; though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim. [Citation.]’ [Citation.] We review the trial court’s ruling de novo. [Citation.]” (U.S. Western Falun Dafa Assn. v. Chinese Chamber of Commerce (2008) 163 Cal.App.4th 590, 598-599.)
Levy contends the trial court erred in concluding he had no probability of prevailing on his claims. He argues that (1) Pearson’s declaration “does not, as a matter of law, defeat [his] evidence that she expressly or impliedly asserted that [he] was incompetent and negligent, and engaged in unethical professional practice,” and (2) “[e]ven if that were enough, [Levy’s] evidence allows an inference that Pearson acted with negligence, malice, and, even robustly, with a reckless disregard for the truth.” We agree.
To establish libel, the plaintiff must show that the defendant published a “false and unprivileged” statement that exposes the plaintiff to “hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” (Civ. Code, § 45.) Falsity is required because truthful speech is protected. (See Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, 600-601.) However, because the law doesn’t recognize the possibility of a false opinion, a claim for defamation fails unless the challenged statement can be reasonably understood to express or imply a provably false assertion of fact. (Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1607, 1608, 1609.) “If the meaning conveyed cannot by its nature be proved false, it cannot support a libel claim. [Citations.]” (Vogel v. Felice (2005) 127 Cal.App.4th 1006, 1017, 1020 (Vogel).)
A statement is not false for purposes of a defamation claim if it is substantially true. (Vogel, supra, 127 Cal.App.4th at p. 1021.) In other words, the statement is not considered false unless it “‘“would have a different effect on the mind of the reader from that which the pleaded truth would have produced.” [Citations.]’” (Ibid., fn omitted.) Accordingly, to establish liability, the challenged statement must be false, and injurious to reputation. (See Smith v. Maldonado (1999) 72 Cal.App.4th 637, 646-647 [“It is sufficient if the defendant proves true the substance of the charge, irrespective of slight inaccuracy in the details, ‘so long as the imputation is substantially true so as to justify the “gist or sting” of the remark’”].)
In ascertaining the gist of a publication, “‘“a court is to place itself in the situation of the hearer or reader, and determine the sense or meaning of the language of the . . . [publication] according to its natural and popular construction.” That is to say, the publication is to be measured not so much by its effect when subjected to the critical analysis of a mind trained in the law, but by the natural and probable effect upon the mind of the average reader.’” (MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 547.)
In view of these principles, we cannot say that Levy has failed to show a reasonable probability of prevailing on the merits. Pearson’s statements were made to a patient and employee of Levy three months after Pearson stopped seeing Levy and two months prior to contacting the medical board. Her statements included substandard medical care, inappropriate touching, drugging, and stalking. Levy denied the implications that could be drawn from the statements. Witnesses declared that Pearson approached them and made such statements. In response, Pearson claimed the witnesses failed to accurately report what she said, her statements were made in connection with her complaint to the medical board, and they were part of an ongoing litigation matter involving Levy’s wife. Considering both Levy’s and Pearson’s evidence, we cannot conclude that her self-serving declaration supporting her motion defeats his attempt to establish evidentiary support for his claims.
Whether Pearson can establish an affirmative defense to Levy’s complaint is another issue. She argues that her statements were privileged. “[Civil Code] [s]ection 47 provides that certain publications or broadcasts are privileged. The privilege attaches if the statement is made in the proper discharge of an official duty [citation], or in any legislative, judicial, or other official proceeding authorized by law [citation], subject to certain exceptions that are not applicable to this case. A qualified privilege exists for communications made between interested persons [citation], and reports of judicial, legislative, or official proceedings or public meetings [citations].” (Chabak v. Monroy (2007) 154 Cal.App.4th 1502, 1513.)
“[T]he absolute privilege established by [Civil Code] section 47[,] [subdivision] (b) serves the important public policy of assuring free access to the courts and other official proceedings. It is intended to ‘“assure utmost freedom of communication between citizens and public authorities whose responsibility is to investigate and remedy wrongdoing.”’ [Citation.] We have explained that both the effective administration of justice and the citizen’s right of access to the government for redress of grievances would be threatened by permitting tort liability for communications connected with judicial or other official proceedings. Hence, without respect to the good faith or malice of the person who made the statement, or whether the statement ostensibly was made in the interest of justice, ‘courts have applied the privilege to eliminate the threat of liability for communications made during all kinds of truth-seeking proceedings: judicial, quasi-judicial, legislative and other official proceedings.’ [Citation.]” (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 360-361 (Hagberg).)
In Hagberg, the plaintiff attempted to cash a check. Erroneously believing the check was counterfeit, bank employees reported the matter to the police, who detained the plaintiff for 20 minutes. The plaintiff sued the bank and others alleging slander, amount other causes of action. (Hagberg, supra, 32 Cal.4th at p. 356-357.) The bank moved for summary judgment and it was granted. On appeal, the appellate court concluded that the statements made by the bank employees to the police were absolutely privileged pursuant to Civil Code section 47, subdivision (b).
Here, unlike in Hagberg, Levy is not challenging Pearson’s statements to the medical board or counsel representing Dr. Greenberg in Levy’s wife’s malpractice action. Instead, Levy is challenging Pearson’s statements to his employee and patient made outside any official proceedings. As to those statements, the litigation privilege does not apply.
Given the record before this court, we conclude that Levy successfully met his burden of proving a reasonable probability that he would prevail on his claim of slander per se. In that his claim of intentional infliction of emotional distress is based on the allegations supporting slander per se, we likewise concluded that there is a reasonable probability that he will prevail on that claim. Accordingly, the trial court erred in granting Pearson’s special motion to strike.
IV. ATTORNEY FEES
Because we have concluded that the trial court erred in granting Pearson’s anti-SLAPP motion, we necessarily conclude that it erred in awarding attorney fees and costs to Pearson as the prevailing party of such motion.
V. DISPOSITION
The orders granting the special motion to strike and awarding attorney fees and costs are reversed with directions to enter new orders denying the motions. Levy is awarded his costs on appeal.
We concur: MCKINSTER, J., KING, J.
Later in her brief, Pearson claims that her statements concerning Levy’s inappropriate conduct were made in connection with an issue under consideration in Levy’s wife’s malpractice action, namely, loss of consortium. However, the issue in Levy’s complaint and before this court is Pearson’s statements in March 2007 to Levy’s patients and employees, not her statements in the malpractice action. Thus, we reject Pearson’s claim that her statements were directly related to the malpractice action. The record shows otherwise.