Wednesday, November 10, 2010
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Court of Appeal Allows Dentist’s Libel Claim Based on Yelp Review
By KENNETH OFGANG, Staff Writer
A dentist’s suit against the man who allegedly libeled her by posting a negative review of her work on a third-party website constituted presumptively protected speech on a public issue, but the man’s anti-SLAPP motion was correctly denied because the dentist is likely to prove defamation, the Sixth District Court of Appeal ruled yesterday.
The justices upheld a Santa Clara Superior Court judge’s ruling that Yvonne Wong can sue Tai Jing for libel. But it reversed the judgment in part, striking Wong’s libel claim against Jing’s wife Jia Ma and her claims for intentional and negligent infliction of emotional distress against Jing and Ma.
Wong’s complaint named Jing, Ma, and Yelp as defendants.
She alleged that she properly advised the couple, prior to filling their son’s cavity in 2006, that she would use a silver amalgam filling containing mercury, and that she examined the child again in 2008 and found more cavities. But after consulting another dentist, she alleged, the couple published “slanderous complaints” on Yelp.com and other websites, false claiming that she did not tell them about the mercury, misdiagnosed the son’s case, and improperly used a general anesthetic.
The couple knew those claims were false, Wong alleged. The Yelp review, a copy of which was attached to the complaint, suggesting that Wong should be avoided “like a disease;” that she worked “really fast” and caused the son to be “light headed for several hours;” that the new dentist discovered seven cavities;that Wong used laughing gas, “which was the cause of my son’s dizziness” and “harms a kid’s nerve system;” and that she used “silver amalgams” containing a trace of mercury.
Libel Claimed
Wong further claimed that she asked Yelp to delete the review as libelous, but that the company, after suggesting that she buy a business account that would allow her to manage the content of her listing—which she refused to do—claimed immunity and said it would not delete the review without a court order.
In moving to strike under Code of Civil Procedure Sec. 425.16, the defendants argued that the propriety of the use of silver amalgam in fillings is a matter of public controversy discussed on various websites.
Wong responded that the matter was a private dispute between the parties, that the gas and amalgam were both properly used under American Dental Association guidelines, and that experts have opined that silver amalgam presents no threat to a patient’s health when properly applied, and that laughing gas used for short periods of time is safe and is preferable to the use of needle-injected medication with children who may be afraid of needles.
Defendants Reply
The defendants replied that Jing wrote and posted the review without Ma’s knowledge, that Jing’s complaints about his son’s reaction to the gas were accurate representations of what he observed, and that his comments on both laughing gas and silver amalgam represented information he had discovered in his research.
Wong voluntarily dismissed Yelp from the suit without prejudice prior to the motion hearing, following which Judge William Elfving ruled that the suit arose from protected speech, but that Wong was likely to prevail on her claims. With respect to Ma’s liability, the judge acknowledged the parties’ declarations saying she was not involved but said she might still be found liable because the plaintiff had not had the benefit of discovery on the issue.
Presiding Justice Conrad Rushing, in his opinion for the court, said the trial judge was correct in holding that the Yelp review involved protected speech on a public issue, shifting to Wong the burden of showing a likelihood of success on the merits. He noted that while Wong argued otherwise, her own materials in opposition to the motion established that the issues of whether to use silver amalgam and nitrous oxide in treating children are part of a public health controversy.
No Evidence
Wong failed to carry that burden, Rushing went on to say, with regard to Ma, since she presented no evidence Ma wrote or posted the review. The trial judge, the presiding justice said, erred by, in effect, shifting to Ma the burden of showing non-liability.
As for the dentist’s defamation claim against Jing, however, the plaintiff showed a prima facie case based on her sworn statements that she disclosed that the amalgam contained mercury, that she properly diagnosed the case, and that she did not use a general anesthetic or otherwise engage in unprofessional conduct, all contrary to Jing’s assertions, Rushing said.
With respect to the emotional distress claims, however, the motion should have been granted, Rushing concluded. Jing’s statements, he said, fall short of the “high bar” that California sets on such claims, and could not have caused Wong to suffer “severe, lasting, or enduring” mental harm.
In any event, the presiding justice added, the emotional distress claims “added nothing of substance” to Wong’s complaint, since they would be know easier to prove that defamation and would not add to her potential recovery.
The case is Wong v. Jing, 10 S.O.S. 6313.
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