Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC 359048, James R. Dunn, Judge.
Richard Y. Kim, in pro. per., and for Plaintiff and Appellant.
Manatt, Phelps & Phillips, Benjamin Shatz and Esra Hudson; and Michael A. Cheah, pro hac vice, for Defendants and Respondents IAC/InterActive Corp., Ticketmaster, Citysearch.com and Genevieve Owyang.
Weston, Benshoof, Rochefort, Rubalcava and MacCuish, Lisa M. Gilford and Elizabeth A. Fierman for Defendant and Respondent Kelly Amanda Smith.
WOODS, J.
Plaintiff Richard Y. Kim appeals from the judgment entered in favor of defendants IAC/InterActiveCorp. (IAC), Ticketmaster, Citysearch.com (Citysearch), Genevieve Owyang, and Kelly Amanda Smith following the court’s granting defendants’ special motion to strike the complaint as a SLAPP suit (Strategic Lawsuit Against Public Participation) pursuant to Code of Civil Procedure section 425.16. The gravamen of Kim’s action was defamation based on an Internet review by Owyang of Kim’s professional services as a dentist and a complaint by Smith to the California Dental Board (Board). Kim raises a multitude of issues. We affirm.
Unless otherwise noted, all statutory references are to the Code of Civil Procedure.
FACTUAL AND PROCEDURAL SYNOPSIS
I. Factual Background
A. Internet Review
From April 2002 to June 2003, Owyang was Kim’s patient. Owyang was not pleased with Kim’s services. On October 1, 2002, Owyang posted an Internet review on Citysearch. The review read:
Don’t go there--worse dentist in Glendale
I do not recommend Dr. Kim. I randomly selected him as my dentist but after my initial visit, I was very discouraged. He made it very clear that he did not like HMO patients (which I was). His attitude towards me was poor as if I was a second-class citizen. I waited 5 weeks to schedule an initial visit, and he made me wait another 6 weeks to schedule my first cleaning. “Because you’re an HMO patient, we cannot schedule you at convenient times.” He is also understaffed. His receptionist doubles as his dental assistant. She was quite unprofessional and made comments about my age and marital status when I turned in my patient information card. All in all, DO NOT use this dentist!
Cons: Poor attitude Dislikes HMO patients
Citysearch allows members of the public to post reviews about local businesses and professionals on its website. All reviews are accessible to anyone with Internet access. According to Kim, Owyang’s review could easily be located by typing his name into an Internet search engine such as Yahoo.com.
At the time Owyang posted her review, she was an employee of Citysearch. Owyang did not have an editorial position at Citysearch and did not post her review in connection with her job. Owyang now works for Ticketmaster. Both Citysearch and Ticketmaster are owned by IAC.
B. Board Complaint
Kelly Smith was also a patient of Kim who was displeased with his services. On July 3, 2003, Smith filed a complaint with the Board. As part of Smith’s complaint, she attached a June 30, 2003, printout of Owyang’s Internet review; the printout identified Citysearch as the source of the review and “bbagel” as the reviewer.
On July 23, the Board sent Kim a letter enclosing Smith’s complaint and instructing Kim to “review the enclosed document(s) and provide a written response.” On July 28, Kim sent a responsive letter to the Board. On September 26, the Board determined that Kim had acted within the bounds of professional responsibility.
Smith is not, and never was, an employee of Citysearch, Ticketmaster or IAC. Smith did not know Owyang and was not asked to file the Board complaint by any of the defendants.
II. Procedural Background
A. The Complaint
On September 25, 2006, Kim filed a pro. per. complaint against defendants for defamation, fraud, intentional interference with prospective business advantage, and civil conspiracy. The complaint was based exclusively on Owyang’s Internet review and Smith’s Board complaint.
B. Anti-SLAPP Motion
In December 2006, IAC, Ticketmaster, Citysearch and Owyang demurred to all Kim’s causes of action. In January 2007, the same defendants filed an anti-SLAPP motion to strike incorporating all the arguments made in their demurrer. Smith joined both motions. Kim jointly opposed both the demurrer and the anti-SLAPP motion.
At a hearing on March 9, the court granted the anti-SLAPP motion, holding that (1) defendants had met their burden of showing Kim’s claims arose from protected activity, and (2) Kim had not met his burden of proving a probability of prevailing on the merits at trial.
Kim, erroneously believing the hearing had been postponed, did not attend the March 9 hearing. On March 14, Kim moved for reconsideration, arguing he had been prejudiced by his failure to attend the hearing. On April 18, the court held a hearing on the reconsideration motion. After giving Kim an opportunity to be heard, the court upheld its earlier order granting the anti-SLAPP motion.
On May 30, the court entered an order and judgment granting the anti-SLAPP motion in its entirety, dismissing Kim’s complaint in its entirety, and awarding attorney’s fees and costs to IAC, Ticketmaster, Citysearch and Owyang.
Kim filed a timely notice of appeal.
DISCUSSION
I. Introduction
“On appeal from an order granting or denying a motion pursuant to section 425.16, the appellate court engages in a two-step process, determining, first, whether the defendant made a threshold showing that the challenged cause of action is one arising out of acts done in furtherance of the defendant’s exercise of a right to petition or free speech under the United States or California Constitution in connection with a public issue, as defined in the statute; and second, whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1056.)
“In opposing an anti-SLAPP motion, the plaintiff cannot rely on the allegations of the complaint, but must produce evidence that would be admissible at trial. Thus, declarations may not be based upon ‘information and belief’ and documents submitted without the proper foundation are not to be considered. [¶] The court considers the pleadings and evidence submitted by both sides, but does not weigh credibility or compare the weight of the evidence. Rather, the court’s responsibility is to accept as true the evidence favorable to the plaintiff and evaluate the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law. The trial court merely determines whether a prima facie showing has been made that would warrant the claim going forward. [¶] ‘Whether plaintiffs have established a prima facie case is a question of law.’ [¶] We review the trial court’s rulings on an anti-SLAPP motion de novo, conducting an independent review of the entire record. (Citations omitted.) (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.)
“‘“The burden on the plaintiff is similar to the standard used in determining motions for nonsuit, directed verdict, or summary judgment.”’ The showing must be made through ‘competent and admissible evidence.’ Thus, declarations that lack foundation or personal knowledge, or that are argumentative, speculative, impermissible opinion, hearsay, or conclusory are to be disregarded.” (Citations omitted.) (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 26.)
The court granted the motion to strike partly on the basis all of appellant’s causes of action were time barred. The court cited Traditional Cat Assn., Inc. v. Gilbreath (2004) 118 Cal.App.4th 392, 402-404 for the proposition that the single-publication rule applied to Web publishing. However, in Gilbreath, the court noted there was no evidence the Web site had been altered. (Id., at p. 404.) Appellant claims Owyang’s review had been republished in 2006 as the text and graphics of the Citysearch site were different from when the review had originally been published. As the issue of the extent of alteration needed to constitute a republication was not fully briefed by the parties, we decline to address the issue.
II. Misconduct
Appellant does not contest the statements were in furtherance of the parties’ constitutional rights. However, several times, appellant states that respondents’ “misconducts” are not covered by the anti-SLAPP statute. In Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1366 and Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 820, both disapproved of on another point in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, footnote 5, cited by appellant, the court noted that illegal activity, such as laundering campaign contributions or burning down a developer’s office as a political protest, are not protected by the anti-SLAPP statute. Appellant did not allege any misconduct other than Internet review and the Board complaint.
Although appellant describes the misconduct as concealing facts, the only specific misconduct identified by appellant is Smith’s alleged intentional concealment of the identity of “bbagel.” Appellant notes there are billions of websites, Smith did not provide or disclose any information about where she found the review, and he could not know where it was posted as it would be like finding a needle in a haystack.
The court found appellant had actual knowledge of both statements in July 2003 when he responded to Smith’s complaint to the Board which had enclosed a copy of the Internet posting. The copy of the Internet review attached to Smith’s complaint indicated it was from Citysearch and listed “bbagel” as the reviewer. In appellant’s reply brief, he claims he did not know Citysearch was an Internet company because the review did not say Citysearch.com. That claim is disingenuous given appellant’s previous arguments acknowledging it was an Internet site. Moreover, it is obvious from the layout of the review that it was from the Internet.
Appellant was able to discover the identity of “bbagel” (i.e., Owyang) by serving Citysearch in a related lawsuit. Despite appellant’s claim that Citysearch “finally” disclosed the identity of “bbagel,” there is no indication that he asked Citysearch (or Smith) for that information prior to his March 2006 discovery motion. (See Burdette v. Carrier Corp. (2008) 158 Cal.App.4th 1668, 1692 [“Once a plaintiff is aware of the injury, the limitations period is presumed to afford sufficient opportunity to discover the identity of all the defendants, and the limitations period is often extended by the filing of a Doe complaint.”].) Thus, appellant was not precluded from discovering Owyang’s identity through normal discovery procedures. (Bernson v. Browning-Ferris Industries (1994) 7 Cal.4th 926, 933, 936-937.) Accordingly, as there was no misconduct, appellant’s action was covered by the anti-SLAPP statute.
Although the argument section of appellant’s brief contains 12 headings, we discern that, in general, the issue raised by appellant is that the court erred in granting respondents’ anti-SLAPP motion to strike as he demonstrated a probability of prevailing on the merits of his complaint.
III. Merits
The court found the statements attributed to Owyang were non-actionable opinion and Smith’s statements to the Board were absolutely privileged pursuant to Civil Code section 47, subdivision (b).
A. Defamation
“‘Defamation is an invasion of the interest in reputation. The tort involves the intentional publication of a statement of fact which is false, unprivileged, and has a natural tendency to injure or which causes special damage.’ ‘There can be no recovery for defamation without a falsehood. Thus, to state a defamation claim that survives a First Amendment challenge, plaintiff must present evidence of a statement of fact that is provably false. “Statements do not imply a provably false factual assertion and thus cannot form the basis of a defamation action if they cannot ‘“reasonably [be] interpreted as stating actual facts” about an individual.’ Thus, ‘rhetorical hyperbole,’ ‘vigorous epithet[s],’ ‘lusty and imaginative expression[s] of . . . contempt,’ and language used ‘in a loose, figurative sense’ have all been accorded constitutional protection.”’” (Citations omitted; original italics.) (Gilbert v. Sykes, supra, 147 Cal.App.4th at p. 27.)
1. Internet Review
The body of Owyang’s Internet review read:
Don’t go there-worse dentist in Glendale
I do not recommend Dr. Kim. I randomly selected him as my dentist but after my initial visit, I was very discouraged. He made it very clear that he did not like HMO patients (which I was). His attitude towards me was poor as if I was a second-class citizen. I waited 5 weeks to schedule an initial visit, and he made me wait another 6 weeks to schedule my first cleaning. “Because you’re an HMO patient, we cannot schedule you at convenient times.” He is also understaffed. His receptionist doubles as his dental assistant. She was quite unprofessional and made comments about my age and marital status when I turned in my patient information card. All in all, DO NOT use this dentist!
The statements appellant claims are defamatory are he was the “worse dentist,” “don’t go there” and “do not use this dentist.” Owyang’s calling appellant the “worse dentist” and her other value-laden opinions are not actionable. (See Moyer v. Amador Valley J. Union High School Dist. (1990) 225 Cal.App.3d 720, 725.)
Appellant also claims Owyang did not prove the defamatory statements were true and the fact she continued to come to him for dental care for more than a year proved she was wrong. It was appellant’s burden to make a prima facie showing by admissible evidence that the statements were false. (See HMS Capital, Inc. v. Lawyers Title Co., supra, 118 Cal.App.4th at p. 211 [“A plaintiff opposing an anti-SLAPP motion bears the burden to make a prima facie showing of facts that would support a judgment in plaintiff's favor.”].)
Appellant argues Owyang’s statements she had to wait five weeks to schedule an appointment and had to wait another six weeks to schedule a cleaning were false as her first visit was three weeks after his office received proof of her insurance coverage and her six week wait “must and/or might have been due to her choice because of her own time conflict.” There is no proof how long before appellant received the insurance verification that Owyang tried to schedule an appointment. Appellant’s speculation as to a possible reason for the six week wait is not admissible evidence.
In addition, appellant complains “Owyang herself entered her own age and marital status in the registration form before she was initially seen by Plaintiff, contrary to what she claimed in the paragraph 10 of her declaration.” Paragraph 10 states: “When I went to check out at the front desk after my cleaning, the receptionist acted in a way that I thought was quite unprofessional. Upon turning in my patient information card, she took a deliberate look at the information and made some comments about my age and marital status, which made me uncomfortable.” Appellant stated Owyang turned in her information on her first visit on August 8 while her cleaning was on September 19.
However, these are minor statements, and even if erroneous, they are not defamatory. (See Carver v. Bonds (2005) 135 Cal.App.4th 328, 359.)
Finally, appellant asserts Owyang did not prove her statements (about appellant’s statement regarding HMO patients) were true other than by her own hearsay declaration. Owyang’s declaration was not inadmissible hearsay; appellant’s statement was a party admission. (Evid. Code, § 1220.)
2. Board Complaint
Appellant argues privilege does not apply to conduct and claims there is no privilege to a cause of action for defamation. “A cause of action for defamation challenges communications and not ‘conduct.’” (Joel v. Valley Surgical Center (1998) 68 Cal.App.4th 360, 372.) The Board complaint is absolutely privileged under Civil Code section 47. (Ibid.; see also Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 738 [Actions based on statements made in litigation are absolutely privileged.].) Appellant cites no authority that privilege does not apply to a cause of action for defamation. (MST Farms v. C. G. 1464 (1988) 204 Cal.App.3d 304, 306.)
B. Other Causes of Action
Appellant’s remaining tort claims also fail because they are based on the same statements. (Gilbert v. Sykes, supra, 147 Cal.App.4th at p. 34.)
IV. Relief from Default
A. Background
On November 4, 2006, Kim mailed a copy of the summons and complaint to Smith at her home address in Portland, Oregon. Within a few days, Smith received the documents and gave them to her father David Smith. David, who was a former lawyer, agreed to help his daughter find legal counsel in Los Angeles. David fell ill shortly thereafter and his illness lasted several weeks. In the meantime, on December 21, Kim had a default entered against Smith. On December 28, unaware of the default, David retained Lisa Guilford of Weston, Benshoof, Rochefort, Rubalcava & MacCuish to represent Smith.
On January 2, 2007, Guilford wrote Kim and asked him to stipulate to vacate the default judgment. Two days later, Guilford tried, unsuccessfully, to reach Kim by telephone. On January 8, Guilford filed a motion to set aside the default judgment. The motion included affidavits by Guilford and David (attesting to his illness). According to respondents, the court set aside the default judgment on January 16.
B. Abuse of Discretion
Appellant contends the court abused its discretion in setting aside the default entered against Smith. Appellant posits the failure to answer had to have been the result of a deliberate refusal to act because her father was not a licensed attorney, Smith did not prove her father was ill, Smith had the opportunity to obtain substitute counsel, and the firm was retained after the default had been entered.
Although respondents argue the court had to grant relief from default pursuant to section 473, subdivision (b), the mandatory provision of that subdivision (for attorney fault) does not apply as the mistake was not by Smith’s attorney. Appellant established David Smith was not a licensed attorney; but David’s declaration established his illness. Moreover, David retained counsel who attempted to get appellant to voluntarily set aside the default and then filed a motion to set aside the default in less than three weeks after the default had been entered. (See Shamblin v. Brattain (1988) 44 Cal.3d 474, 478 [“[W]hen a party in default moves promptly to seek relief, very slight evidence is required to justify a trial court’s order setting aside a default. . . . [and] in the absence of a clear showing of abuse of discretion, [the court’s order granting relief] should not be disturbed.” (Citations omitted.)].) Thus, the court did not abuse its discretion in setting aside the default entered against Smith.
DISPOSITION
The judgment is affirmed. Respondents to recover costs on appeal to include an award of attorney’s fees on appeal in an amount to be determined by the superior court on remand. (Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 287.)
We concur: PERLUSS, P.J., ZELON, J.