Opinion
D057980
12-07-2011
ROBIN BERTSCH, Plaintiff and Respondent, v. THE WELLNESS HOUR, INC., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Super. Ct. No. 37-2010-00051507- CU-FR-NC
APPEAL from an order of the Superior Court of San Diego County, William S. Dato, Judge. Affirmed.
Robert Bertsch sued The Wellness Hour, Inc. (Wellness), a video production company, alleging Wellness produced and disseminated a video containing a discussion of private medical facts pertaining to Bertsch's dental treatment. Bertsch asserted common law, statutory, and constitutional claims against Wellness.
Bertsch also sued his former dentist, but these claims are not before us on appeal.
Wellness moved to strike the causes of action under the anti-SLAPP statute, arguing the video appeared in public forums (including on cable television) and concerned a matter of public interest, and that Bertsch would be unable to prevail on his
claims. (See Code Civ. Proc., § 425.16.) The trial court denied the motion, finding the video was an advertising infomercial that did not involve an issue of public interest. The court thus did not reach the issue whether Bertsch established a probability of prevailing on the claims.
Statutory references are to the Code of Civil Procedure unless otherwise specified.
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We affirm. Bertsch's claims against Wellness are not subject to the anti-SLAPP statute because they arise from Wellness's alleged improper disclosure of private facts about Bertsch, which is not a matter of public interest. We thus do not consider the merits of Bertsch's claims.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Complaint's Allegations Against Wellness
Of relevance here, Bertsch's complaint alleges the following facts. Beginning in December 2004, dentist Thomas Wais treated Bertsch for temporomandibular joint (TMJ) disorder. In May 2008, Bertsch sent Dr. Wais a letter complaining about the quality of Dr. Wais's treatment and requesting Dr. Wais pay damages for Bertsch's economic losses and pain and suffering. Bertsch also requested that Dr. Wais no longer use Bertsch's image or discuss Bertsch's treatment history on Dr. Wais's Web site. Bertsch stated: "I am demanding that you take my picture off your website within 48 hours of receipt of this letter. To have my picture on your site, implying that I am a happy patient and an example of your successful dental technique and work is nothing short of deliberate fraud."
In January 2009, Bertsch and Dr. Wais "settled [Bertsch's] claim of negligent dental treatment against [Dr. Wais] in exchange for a payment of $200,000.00."
About 11 months later, Bertsch discovered that Dr. Wais continued to show Bertsch's image and discuss his treatment history on the dental Web site. Specifically, when a viewer selected the "TMJ" tab on the Web site, the viewer is "'invited'" to watch a video interview produced by Wellness pertaining to Dr. Wais's "success in treating TMJ complaints." When Bertsch watched the interview, he was "astonished" to discover that his "photograph was exhibited several times and that his name was referred to by [Dr. Wais] when extolling the wonderful results he had obtained whilst treating [Bertsch] for TMJ."
Bertsch attached the interview transcript to the complaint. During the interview, Randy Alvarez, Wellness's founder and chief executive officer, questioned Dr. Wais about the symptoms and causes of TMJ and the manner in which Dr. Wais treats this condition. In response, Dr. Wais discussed Bertsch's case as "an example" of his successful TMJ treatment. In this portion of the video, Dr. Wais specifically referred to "Robin" (Bertsch's first name) and showed Bertsch's picture, and stated that his examination and testing showed that Bertsch "had one tooth that was 2 millimeters higher in the back . . . than where his bite should be," which meant that "Robin [was] pivoting his jaw . . . out of the socket." Dr. Wais stated that Bertsch's "muscles went into spasm all the time. It was so bad that he had these big bumps of bone in the mouth that were growing into his mouth." Dr. Wais also stated that Bertsch's neck was so swollen that his "actual shirt size diminished" after the treatment. During the interview, Dr. Wais identified Bertsch by his first name several times, and said that Bertsch's wife referred Bertsch to the dental practice. Additionally, the video showed photographs of Bertsch's face, mouth and neck.
Bertsch sued several defendants, including Dr. Wais and Wellness, claiming damages arising from the publication of, and false statements about, his private medical condition and treatment. Bertsch alleged claims against Wellness for intentional and negligent infliction of emotional distress, invasion of privacy, and statutory violations. (Civ. Code, § 3344; Bus. & Prof. Code, § 17200.)
In the emotional distress claims, Bertsch alleged Wellness's conduct in producing and distributing the video caused him to suffer emotional distress resulting from defendants' using his image, "including recognizable facial photographs and his name, to positively market and promote [Dr. Wais's] dental practice . . . ," and that as a result of defendants' conduct he suffered severe mental anguish, including "humiliation, extreme embarrassment, [and] public ridicule . . . ."
In the invasion of privacy claim, Bertsch alleged Wellness violated his "right of privacy by using and disseminating his image on [Dr. Wais's] website, the Internet and, in a continuing and abhorrent manner, by touting the effectiveness of . . . bioesthetic dentistry as it personally applied to Plaintiff in an interview on a public cable television station which was broadcast nationally and in Canada and conceivably seen . . . by millions of members of the general public." (Italics added.)
In the Civil Code section 3344 claim, Bertsch alleged Wellness knowingly misappropriated Bertsch's "photographs and name . . . wherein Plaintiff was identified as [Dr. Wais's] satisfied patient . . . and the beneficiary of successful . . . bioesthetic dental techniques performed on Plaintiff . . . . [¶] . . . In reality, Plaintiff was not a satisfied patient of Defendant Wais and rather considered that [Dr. Wais's] treatment caused him grievous harm . . . ." Bertsch alleged that Dr. Wais and Wellness misused Bertsch's name for advertising purposes and for their financial benefit.
In the statutory unfair competition claim, Bertsch alleged Dr. Wais and Wellness "used and disseminated [Bertsch's] image to promote, advertise and market . . . bioesthetic dentistry in a false and fraudulent light" and that the manner in which the video discussed "Plaintiff's dental treatment" was unfair and untrue. (Italics added.) Bertsch also alleged: "The marketing, promotion and advertising of . . . bioesthetic dentistry as a revolutionary approach to dental complaints and problems was deceptive and misleading and, as to Plaintiff specifically, resulted in his image being used to further the false, misleading and untrue advertising undertaken by Defendants . . . ." Bertsch further alleged that the purpose of the video was for defendants' financial gain and to " 'drive hundreds of new patients' " to Dr. Wais's dental practice.
B. Anti-SLAPP Motion
In moving to strike the complaint under the anti-SLAPP statute, Wellness argued the claims arose from protected speech because the speech was made in a public forum (§ 425.16, subd. (e)(3)) and concerned an issue of public interest under section 425.16, subdivisions (e)(3) and (e)(4). With respect to the public interest issue, Wellness argued: "It is difficult to imagine an issue of more ''widespread public interest' within a community of individuals who suffer from TMJ than an interview with a health care practitioner such as Wais in which possible treatments for TMJ are discussed and disseminated." Wellness also argued Bertsch could not establish a probability of prevailing on the merits because the challenged communications are privileged under Civil Code section 47, subdivision (c).
In support of the motion, Wellness submitted Alvarez's declaration, who stated Wellness produces television interviews with medical professionals for the purpose of marketing their practices to the public. Wellness shows the interviews on its own Web site and local cable or broadcast television, and also provides the video to the participating doctors and dentists to use to market their practices and create awareness about a particular health care issue.
In opposing the motion, Bertsch argued that the challenged speech was not a statement on a public issue or a subject of public interest because it was merely a commercial message touting an individual dentist. Bertsch also maintained that the "expression" on his face and the "size of his neck" are not "important public issues," noting that he "is not suing [Wellness] because it [presented] opinions about dentistry, but because it staged a fraudulent sales pitch that invaded his privacy, and [contained] untrue statements about him, and included a disclosure of his personal dental records . . . ." (Italics added.)
Bertsch relied on the complaint's allegations and submitted his supporting declaration, in which he discussed Dr. Wais's alleged negligent treatment and stated he was "embarrassed and humiliated to see my pictures, personal physical problems and dental history exploited on the Internet," resulting in substantial physical and emotional distress. Bertsch also proffered information showing that Dr. Wais paid Wellness to have the interview broadcast on Wellness's cable television program.
In reply, Wellness produced evidence showing that TMJ disorders affect more than 10 million Americans, and that "[a]ccording to the website of the Mayo Clinic, based on statistics provided by the NIDCR, between 5 and 15 percent of people in the United States experience pain associated with TMJ disorders."
After a hearing, the court denied the motion, concluding the challenged statements were not made in connection with an issue of public interest. The court found the interview was an advertising statement regarding Dr. Wais's dentistry practice and this type of promotional interview did not involve a matter of public interest under the anti-SLAPP statute. (See § 425.16, subds. (e)(3), (e)(4).)
DISCUSSION
Under section 425.16, a court "shall" grant a defendant's motion to strike a cause of action "arising from" an act "in furtherance of" the defendant's constitutional petition or free speech rights unless the plaintiff establishes a probability of prevailing on the claim. (§ 425.16, subd. (b)(1).) To promote participation in matters of public significance, courts must construe this statute "broadly" in favor of the moving party. (§ 425.16, subd. (a).)
In ruling on an anti-SLAPP motion, the trial court engages in a two-step process. (Taus v. Loftus (2007) 40 Cal.4th 683, 703.) First, the court decides whether the defendant has met its burden to show the challenged cause of action is one arising from constitutionally protected activity as defined in the statute. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) Second, if this showing has been made, the court must determine whether the plaintiff has met its burden to show a probability of prevailing on the claim. (Ibid.) On appeal, we engage in the same analysis as the trial court and we apply a de novo review standard. (See Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146, 1159.)
The anti-SLAPP statute identifies four categories of actions that are " 'in furtherance of' " a defendant's free speech or petition rights. (§ 425.16, subd. (e).) In their motion below, Wellness relied on the third and fourth categories to assert the statute's applicability: "(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"; and "(4) any other conduct in furtherance of the [specified constitutional rights] in connection with a public issue or an issue of public interest." (§ 425.16, subds. (e)(3), (e)(4).) The court denied the motion, ruling that Bertsch's claims were not based on Wellness's statements or conduct " 'in connection with an issue of public interest.' "
On appeal, Wellness contends the court erred because the advertising speech at issue here involved TMJ disorder, which is an important public health issue and affects a "significant number of individuals and can cause serious conditions." Even assuming the truth of these facts, the record does not show Bertsch's claims arose out of this subject. (§ 425.16, subd. (b)(1).)
Section 425.16's " 'arising from' " statutory requirement means "the defendant's act underlying the plaintiff's cause of action must itself have been an act in furtherance of the right of petition or free speech." (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78; Department of Fair Employment & Housing v. 1105 Alta Loma Road Apartments (2007) 154 Cal.App.4th 1273, 1283-1284.) "[T]he critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity." (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) "The anti-SLAPP statute's definitional focus is [on] the defendant's activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning." (Id. at p. 92.) Even where a " 'cause of action may be "triggered by" or associated with a protected act, . . . it does not necessarily mean the cause of action arises from that act.' " (Freeman v. Schack (2007) 154 Cal.App.4th 719, 730.)
In his claims asserted against Wellness, Bertsch sought relief because Wellness produced and disseminated a video that discussed and publicized Bertsch's confidential medical treatment, asserted statements about Bertsch that were allegedly untruthful, and showed photographs of Bertsch on the Web site and cable television programming. These claims arose from Wellness's disclosure of facts about Bertsch's medical condition and treatment. The subject of Bertsch's individual medical condition and treatment is not a matter of public interest.
In arguing for a contrary conclusion, Wellness relies primarily on DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562. In DuPont, a plaintiff brought a class action against the manufacturer of the drug Coumadin, alleging the defendant disseminated misleading information about the use and effectiveness of an equivalent generic product. (Id. at p. 564.) The reviewing court found the defendant's alleged false statements about the drug concerned a matter of public interest, relying on facts showing that more than 1.8 million consumers have purchased Coumadin and the medication treats life-threatening conditions. (Id. at p. 567.)
Even assuming TMJ affects a similar number of people and is an equally serious medical condition, Bertsch's claims were not based on Dr. Wais's statements about TMJ. Bertsch's claims instead concerned the fact that his own medical treatment was discussed, his privacy was breached, and his confidential photographs were disclosed. These claims did not "aris[e] from" an issue of public interest. (§ 425.16, subd. (b)(1), italics added.)
We reject Wellness's argument asserted in its reply brief that the specific statements about Bertsch are " 'inextricably intertwined' " with the speech concerning "TMJ Disorder and potential treatments for the condition." The allegations of the complaint are aimed at the alleged improper disclosure of Bertsch's medical condition and treatment, and this discussion is independent of Dr. Wais's statements about the TMJ disorder. Although at one point the complaint refers to the marketing and advertising of bioesthetic dentistry as "deceptive and misleading," this allegation does not alter our anti-SLAPP analysis. The "principal thrust or gravamen" of the plaintiff's cause of action is the relevant consideration in determining whether the anti-SLAPP statute applies. (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188.)
Moreover, even assuming the claims arose from the broader topic of Dr. Wais's dental practice and treatment of TMJ disorder, we agree with the trial court that Dr. Wais's statements on the video were not matters of public interest. Generally, statements about the quality of a specific commercial product or about a particular business are not matters that concern a public issue or a matter of public interest within the meaning of the anti-SLAPP statute. (§ 425.16, subds. (e)(3), (e)(4); Commonwealth Energy Corp. v. Investor Data Exchange, Inc. (2003) 110 Cal.App.4th 26, 34-35; Consumer Justice Center v. Trimedica Internat., Inc. (2003) 107 Cal.App.4th 595, 601; Nagel v. Twin Laboratories, Inc. (2003) 109 Cal.App.4th 39, 47-48; see Rivero v. American Federation of State, County & Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 924.) Although a statement about the quality of a good or service may affect consumers or potential patients, this type of statement is directed primarily at protecting private commercial interests, and thus does not generally implicate issues that are fundamentally "public" concerns. (See Commonwealth Energy, supra, at pp. 34-35; Consumer Justice Center, supra, at p. 601; Nagel, supra, at pp. 50-51.)
We recognize that an advertisement containing consumer information can be a matter of public interest if it "contribute[s] to the public debate" about a topic of substantial public concern and is intertwined with noncommercial speech of a public interest nature. (See Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 898; DuPont Merck Pharmaceutical Co. v. Superior Court, supra, 78 Cal.App.4th at pp. 564, 566-567.) However, the challenged video did not fall into this category. The video did not serve to contribute to the public debate; nor was the specific subject of the video inseparable from a broader public health message. Instead, as the trial court noted, the video was primarily a commercial message to promote Dr. Wais's business to potential dental patients: "[T]here is no question that the core of the Wais infomercial is an advertising statement regarding Wais's dentistry practice. . . . The fact that certain members of the general public may be interested in the treatment of [TMJ] is a mere 'generality' that might be abstracted from the infomercial, but it does not mean that Wais's promotional interview involves a matter of public interest for purposes of section 425.16."
DISPOSITION
Order affirmed. Appellant to bear respondent's costs on appeal.
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HALLER, J.
WE CONCUR:
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NARES, Acting P. J.
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MCINTYRE, J.