Monday, September 28, 2020
By Sandra Hong, Staff Writer
A dentist whose emailed and in-person statements to employees and other dentists concerning alleged substandard dental care by his business partner did not meet the bar of contributing to a public conversation or discussion of “vital interest” and are not protected by the anti-SLAPP statute, Div. One of the Fourth District Court of Appeal has held.
The opinion by Justice Judith L. Haller, filed Thursday, reverses in part an order by San Diego Superior Court Judge Randa E. Trapp. Trapp granted an anti-SLAPP motion under Code of Civil Procedure §425.16 by dentist My Tran after finding Tran’s alleged defamatory statements concerned an issue of public interest based on the Sixth District’s 2010 decision in Wong v. Jing.
Wong also involved alleged defamatory statements about a dentist’s standard of care, which were posted on the consumer reviews website Yelp.com. Tran argued his statements regarding fellow dentist Ian Murray’s level of competence and care were like those in Wong and similarly entitled to protection under §425.16.
However Haller concluded out of the five alleged defamatory statements made by Tran, only one constituted protected activity. Unlike the utterances in Wong, Tran’s statements were made to a limited audience without an intention to raise broad awareness about Murray’s allegedly shoddy dental work.
“The record does not support that Dr. Tran communicated or intended to communicate the statements made to the office staff to the broader public, medical/dental community, or to the patient population,” Haller wrote.
Tran and Murray were partners in a dental practice in La Jolla for about two years until they began having financial disputes in 2017 stemming from a wage-and-hour lawsuit their office had settled and a possible purchase of the practice by Murray.
Around that time, Tran began accusing Murray of inferior dental work on certain patients and relaying his concerns to office staff and other dentists, including Murray’s new employer.
Murray claimed defamation and defamation per se. Tran made a special motion to strike under §425.16.
Haller determined each alleged statement made by Tran had to survive a two-part inquiry set forth by the state’s high court in 2019 in FilmOn.com v. DoubleVerify, Inc. in order to be protected by §425.16.(e)(4).
Justice Mariano-Florentino Cuéllar described the inquiry in FilmOn.com as follows:
“First, we ask what ‘public issue or  issue of public interest’ the speech in question implicates—a question we answer by looking to the content of the speech. Second, we ask what functional relationship exists between the speech and the public conversation about some matter of public interest. It is at the latter stage that context proves useful.”
Haller determined while Tran’s statements satisfied the first inquiry on being a subject of “vital interest” to the public, most failed under the second inquiry based on a consideration of the context in which the statements were made.
Three of the alleged defamatory statements were emailed to dentists in San Diego and Las Vegas, with office staff copied on the communications. On another occasion, the alleged defamatory statements were made during a meeting with office staff.
The only instance of meeting the second inquiry, Haller said, was a phone call with another dentist for whom Murray was working at the time. Tran reportedly told the dentist he was sharing the information about Murray to “protect his patients” and those of the other dentist.
“Those statements—made to a current employer—were directly tethered to the issue of public interest (a dentist’s competence to perform dental work) and promoted a public conversation on that issue because they were made to a person who had direct connection to and authority over the patient population with whom Dr. Murray was working at the time,” Haller wrote.
Haller determined Trapp did not err in granting Tran’s motion with respect to the statement made over the phone because, not only would it have been protected speech—meeting the first prong of the anti-SLAPP statute—but also met the second prong in that Murray was unable to show a probability that he would prevail on his defamation claim.
“We found Dr. Murray did not present any facts showing that Dr. Tran in fact made these statements,” Haller wrote.
The case is Murray v. Tran, D076104.
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