(Santa Clara County Super. Ct. No. CV129971). Trial Judge: The Honorable William J. Elfving.
The opinion of the court was delivered by: Rushing, P.J.
CERTIFIED FOR PUBLICATION
Plaintiff Yvonne Wong (Wong), a pediatric dentist, filed an action against defendants Tai Jing (Jing), his wife Jia Ma (Ma), and the Web site Yelp.com (Yelp) based on allegedly false assertions contained in a review posted on Yelp that criticized the dental services Wong had provided to Jing and Ma's young son. The defendants responded by filing an anti-SLAPP motion under Code of Civil Procedure section 425.16 to strike Wong's claims.*fn1 The trial court denied the motion, and defendants now appeal from that order. (§ 425.16, subd. (i).)
II. ANTI-SLAPP MOTION PROCEDURE
Section 425.16 is called the anti-SLAPP statute because it allows a defendant to gain early dismissal of causes of action that are designed primarily to chill the exercise of First Amendment rights. (Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1568; Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1069-1070.) In pertinent part, the statute 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; (4) or 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), italics added.)
In ruling on an anti-SLAPP motion, the trial court engages in a two-step process. "First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant's burden is to demonstrate that the act or acts of which the plaintiff complains were taken 'in furtherance of the [defendant]'s right of petition or free speech under the United States or California Constitution in connection with a public issue,' as defined in the statute. [Citation.] If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim." (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon); accord, Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733.) Both the defendant moving party and the plaintiff must make a prima facie showing to satisfy their respective burdens. (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 646, disapproved on another point in Equilon, supra, 29 Cal.4th at p. 68, fn. 5.) Only when a defendant shows that a cause of action is based on protected conduct and the plaintiff fails to show a likelihood of success on that claim is it subject to dismissal. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192; see 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].)
III. THE PLEADINGS AND THE ANTI-SLAPP MOTION
In her complaint, Wong asserted causes of action for libel per se and intentional and negligent infliction of emotional distress.*fn2 In support of those claims, Wong alleged that in 2006, she filled a cavity in Jing and Ma's son's tooth, and before doing so, she advised them that the silver amalgam contained mercury, and Ma acknowledged this information. Wong further alleged that in 2008, after examining the boy again, she discovered cavities on the right side of his mouth and scheduled another appointment because she thought he might have a few more cavities. However, Jing and Ma consulted a different dentist. Wong alleged that, Jing and Ma published "slanderous complaints" about her on Web sites, including Yelp, complaining that Wong had not warned them about the mercury, she had misdiagnosed their son's case, and she had improperly used a general anesthetic "that is outside her scope of practice" and for which she could "lose her license." Wong alleged that Jing, Ma, and Yelp knew that the statements on the Web site were false and had no legal excuse for making them.
Wong attached a copy of the Yelp review. It read as follows: "1 star rating . . . . [¶] Let me first say I wish there is [sic] '0' star in Yelp rating. Avoid her like a disease! [¶] My son went there for two years. She treated two cavities plus the usual cleaning. She was fast, I mean really fast. I won't necessarily say that is a bad thing, but my son was light headed for several hours after the filling. So we decided to try another dentist after half a year. [¶] I wish I had gone there earlier. First the new dentist discovered seven cavities. All right all of those appeared during the last half a year. Second, he would never use the laughing gas on kids, which was the cause for my son's dizziness. To apply laughing gas is the easiest to the dentist. There is no waiting, no needles. But it is general anesthetic, not local. And general anesthetic harms a kid's nerve system. Heck, it harms mine too. Third, the filling Yvonne Wong used is metallic silver color. The new dentist would only use the newer, white color filling. Why does the color matter? Here is the part that made me really, really angry. The color tells the material being used. The metallic filing, called silver amalgams [sic], has a small trace of mercury in it. The newer composite filling, while costing the dentist more, does not. In addition, it uses a newer technology to embed fluoride to clean the teeth for you. [¶] I regret ever going to her office. [¶] P.S. Just want to add one more thing. Dr Chui, who shares the same office with Yvonne Wong is actually decent."
B. The Anti-SLAPP Motion, Opposition, and Reply
In their anti-SLAPP motion, defendants claimed that posting the review was protected conduct because the review concerned an issue of public interest and was made in a public forum. They further claimed that Wong could not show a probability of success on her claims.
Defendants submitted, among other things, copies of various Web site pages to show that the Internet is an important source of public information about oral hygiene, dentists, and dentistry. Defendants also submitted Web site pages concerning the use of silver amalgam to fill cavities and whether it is safe because it contains mercury.
In opposing the motion, Wong claimed that posting the review was not protected conduct. She argued that the review reflected only "a dispute between private parties about the manner in which private services were rendered." Wong further argued that she would probably succeed on her claims.
In her declaration, Wong stated that in 2006, she advised Jing and Ma that their son needed a filing, advised them that she would use silver amalgam containing mercury, provided a data sheet concerning the use of amalgam, and obtained written consent. Thereafter, she conducted the procedure using nitrous oxide because the boy resisted needles. Ma orally consented and watched the procedure. Wong stated that the boy exhibited no ill effects from the gas, and his parents never complained about its use. According to Wong, nitrous oxide is an analgesic, not a general anesthetic; and the use of both the gas and amalgam are approved by the American Dental Association (ADA).
Wong further declared that in April 2008, Jing and Ma cancelled a scheduled appointment without sufficient notice and were charged for it. In May, she took x-rays of the boy, found cavities, and recommended fillings and additional x-rays. Jing and Ma asked for a Saturday appointment, but she declined because she reserves that day for simpler procedures due to staffing difficulties. When Jing and Ma complained, Wong waived the missed-appointment fee. Nevertheless, Jing and Ma terminated her service, demanded dental files, and wentto another dentist. Thereafter, Jing and Ma posted their negative review.
Wong said that she asked Yelp to delete the review because it was libelous. Yelp advised her to buy a business account so she could manage the content of her listing. When she declined and asked again for the deletion, Yelp claimed immunity for the review and advised her she needed a court order. In response, Wong filed her lawsuit.
In addition to her declaration, Wong submitted documentary information, including the fact sheet and consent forms acknowledged by Ma concerning the use of amalgam, copies of pages from the ADA Web site, an article from its journal, and reference articles from the American Academy of Pediatric Dentistry concerning the safety of amalgam and the pediatric use of nitrous oxide.
Wong also submitted the declaration of Bernard Eisenga, M.D., Ph.D., who opined that when properly applied, silver amalgam is not hazardous to a patient's health. He opined that when properly used in dentistry, nitrous oxide is not a general anesthetic and does not cause harm to the nervous system. He further explained that from a safety point of view, where the use of the gas is limited to short periods of 10-20 minutes, it is better to use nitrous oxide than needle-injected medication on children who are resistant to or afraid of needles.
In reply, defendants submitted the declarations of Jing and Ma. Jing stated that he wrote and posted the review on Yelp without Ma's knowledge. Jing further stated that after his son's cavity was filled in 2006, his son was pale and vomited and felt light-headed for hours. In 2008, after learning from Wong that his son had more cavities and being concerned about the boy's reaction to the nitrous oxide, Jing took him to a different dentist, who found several more cavities and filled them with white composite after they discussed the pros and cons of silver amalgam. The new dentist also did not use nitrous oxide. Thereafter, Jing researched the use of silver amalgam and nitrous oxide on the Internet. He then shared his views on both and his experience with Wong with others in his posting.
In her declaration, Ma stated that she did not write or even know about Jing's review before it was posted and did not know about the review until long after it was posted.
The parties filed objections to the declarations and exhibits each had submitted in support of and opposition to the motion. Before the hearing on the motion, Wong voluntarily dismissed Yelp from her lawsuit without prejudice.
C. The Trial Court's Ruling
In denying defendants' motion, the court found that they had shown that Wong's action arose from protected speech--i.e., " 'a writing made in a place open to the public or a public forum in connection with an issue of public interest.' [Citations.]" The court further found, however, that Wong had established a probability of success on the merits by making a prima facie showing of facts, which, if believed, would support a finding of libel and infliction of emotional distress against all defendants.
Concerning Ma's potential liability in particular, the court acknowledged Jing's and Ma's declarations concerning Ma's non-involvement but noted that they raised the issue in defendants' reply, and Wong had not had the benefit of discovery to controvert them. Under the circumstances, the court ruled that the declarations did not establish Ma's non-liability. In addition, the court also ruled on the parties' evidentiary objections, overruling all of Wong's objections and sustaining and overruling some of defendants' objections.
IV. Yelp's Right to Appeal
Wong initially challenges Yelp's standing to appeal. She argues that because she voluntarily dismissed Yelp as a defendant in her lawsuit without prejudice, Yelp "has nothing to appeal."
Although the "general rule" is that "once a person has been dismissed from an action he is no longer a party and the court lacks jurisdiction to conduct any further proceedings as to him," the rule has exceptions. (Frank Annino & Sons Construction, Inc. v. McArthur Restaurants, Inc. (1989) 215 Cal.App.3d 353, 357.) Thus, "[e]ven after a party is dismissed from the action he may still have collateral statutory rights which the court must determine and enforce[,]" including "the right to statutory costs and attorneys fees and the right to notice and hearing on a motion to set aside the dismissal. [Citations.]" (Ibid; accord, Day v. Collingwood (2006) 144 Cal.App.4th 1116, 1124.)
For example, in Liu v. Moore (1999) 69 Cal.App.4th 745, the defendant Liu filed a cross-complaint against Moore and others, and in response, Moore filed an anti-SLAPP motion. Prior to the hearing, Liu dismissed the cross-complaint as to Moore only without prejudice. Moore then sought attorney fees as authorized by the anti-SLAPP statute. (§ 425.16, subd. (c) ["prevailing party on a special motion to strike shall be entitled to recover his or her attorney's fees and costs"].) The trial court denied the motion, reasoning that the dismissal of Moore nullified her anti-SLAPP motion and precluded a finding that she was a prevailing party entitled to fees. (Liu v. Moore,supra, 69 Cal.App.4th 69 at p. 749.) Moore appealed from the order, and the court reversed. The court observed that the purpose of the anti-SLAPP statute is "to give relief, including financial relief in the form of attorney's fees and costs, to persons who have been victimized by meritless, retaliatory SLAPP lawsuits because of their 'participation in matters of public significance. [citation]." (Id. at p. 750, quoting § 425.16, subd. (a).) The court explained that the trial court's ruling would effectively negate an important part of the relief the Legislature intended to provide to SLAPP defendants, frustrate the purpose of discouraging plaintiffs from filing SLAPP suits, and "prolong both the defendant's predicament and the plaintiff's outrageous behavior." (Ibid.) Accordingly, the court held that "a defendant who is voluntarily dismissed, with or without prejudice, after filing an [anti-SLAPP motion], is nevertheless entitled to have the merits of such motion heard as a predicate to a determination of the defendant's motion for attorney's fees and costs . . . ." (Id. at p. 751; accord, Kyle v. Carmon (1999) 71 Cal.App.4th 901, 917-919 ...