Monday, October 28, 2019
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Court of Appeal:
Allegation That Doctor ‘Screwed Up’ Surgery Can Be Actionable
Order Is Affirmed Denying Anti-SLAPP Motion by Poster of Yelp Review of Plastic Surgeon
By a MetNews Staff Writer
An assertion on a website that a plastic surgeon “screwed up” can be viewed as an assertion of fact, not merely opinion, giving rise to an action for defamation, the Court of Appeal for this district held on Friday.
Justice Anne Egerton of Div. Three wrote the opinion, which was not certified for publication. It affirms an order by Los Angeles Superior Court Judge Susan Bryant-Deason denying an anti-SLAPP motion filed by Valerie Swan, who posted a negative review of Beverly Hills plastic surgeon Payman Simoni on Yelp.com, drawing a suit by him.
She said in her Yelp review:
“Payman Simoni is a terrible doctor. He screwed up so badly on the surgery he did on me that I have had 10 surgeries to try to fix it and I still need many more. He caused pain and disfigurement. He also did more horrible things to me, but apparently when a doctor does something extraordinarily bad, yelp removes the post. So you will have to google his name to find my complete reviews of him, but needless to say I do not recommend him.”
Simoni insisted in a declaration in support of his opposition to Swan’s anti-SLAPP motion that he “successfully performed” a procedure on Swan and “never caused her any disfigurement as she falsely states.” He pointed out that she had sued him for malpractice, and he won.
Two Prongs
Bryant-Deason determined that the first prong of the anti-SLAPP motion was satisfied—speech in connection with a public issue—but that Swan failed to meet her burden under the second prong by demonstrating a probability of prevailing on the merits.
(Egerton said in a footnote: “Simoni contends the court erred under the first prong. He argues Swan’s review concerned what amounted to only a private dispute about the treatment she received and not an accusation about the quality of his medical practice generally. Because we conclude the trial court correctly denied Swan’s motion under the second prong, we need not address the court’s first prong analysis.” She did, however, later address it in connection with Swan’s cross-action.)
As Bryant-Deason saw it, the statements that Simoni “screwed up so badly” and that Swan underwent 10 surgeries “to try to fix it” could be seen as factual allegations, requiring proof, in order to satisfy the second prong.
Egerton’s Opinion
Egerton wrote:
“Without specifically addressing the assertion that Simoni ‘screwed up,’ Swan argues the whole review should be regarded as opinion because it appeared on the Yelp website where hyperbolic opinion commentary is commonly used ‘to convince customers to either use or avoid a business’ services.’ This argument again overlooks the governing law and the trial court’s reasoning. It is true that this context might persuade a reasonable fact finder to conclude the whole review should be treated as opinion, but that is not the only conclusion a reasonable fact finder could reach given the content and context of the statements.”
She added that “the mere fact that a statement appears on a review website and uses fiery rhetoric does not establish, as a matter of law, the statement is a nonactionable opinion.”
Swan’s Anti-SLAPP Motion
Simoni included defensive remarks on his own website; Swan brought a cross-complaint; Simoni filed an anti-SLAPP motion; Bryant-Deason granted it.
Swan addressed only the first prong. The anti-SLAPP statute, Code of Civil Procedure §425.16, authorizes a special motion to strike where an action is based on speech “in connection with a public issue,” which includes “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.”
Simoni’s posting, she contended, did not relate to a public issue and Simoni’s website was not a public forum because others may not post comments on it.
High Court Decision
Egerton responded that the California Supreme Court held in its 2006 opinion in Barrett v. Rosenthal:
“Web sites accessible to the public...are ‘public forums’ for purposes of the anti-SLAPP statute.”
She added:
“Just as Swan’s Internet posts concerned a matter of public interest—the reliability and quality of medical care—so too did Simoni’s blog post, because, as the trial court recognized, it challenged those ‘complaints about the medical profession, rather than merely complaints against Simoni individually.’ The trial court correctly concluded the post concerned an issue of public interest protected under the anti-SLAPP statute.”
Simoni’s Allegations
The opinion quotes the allegations on Simoni’s website but does not shed light on the inconsistency in the doctor asserting in his opposition to Swan’s anti-SLAPP motion that he performed surgery on her competently, and the posted allegation that she was not a patient.
His posting begins:
“There is one individual is [sic] spamming all physicians rating sites posting false negative reviews about Payman Simoni, MD. This is a warning, she is not a real patient. She is a former employee who was caught stealing narcotics. She was let go immediately. Since then, she has tried to blackmail Dr. Simoni and Simoni Plastic Surgery for a huge sum of money.”
Swan is not identified in the text. However, there is a link to a page on ripoffreport.com on “valerie swan / mystic9 - burlingame California.”
Egerton’s opinion came in Simoni v. Swan, B290682.
Rolling Hills Estates attorney Jeffrey Lewis represented Swan on appeal. Benjamin J. Fenton and Randy Hsieh of Fenton Law Group in West Los Angeles acted for Simoni.
Copyright 2019, Metropolitan News Company