Wong v. Jing
117 Cal. Rptr. 3d 747, 2010 Cal. App. LEXIS 1923, 189 Cal. App. 4th 1354 (2010)
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Rule of Law:
A negative online review of a professional's services constitutes protected speech on an issue of public interest under California's anti-SLAPP statute when it discusses matters of public concern, such as the safety of medical materials and procedures. However, the author of the review may still be liable for defamation if the plaintiff can demonstrate a probability of proving the review contains or implies provably false assertions of fact.
Facts:
- Yvonne Wong, a pediatric dentist, treated Tai Jing and Jia Ma's young son.
- In 2006, Wong filled a cavity for the son using silver amalgam, which contains mercury, after providing an informational data sheet and obtaining Ma's written consent.
- During the 2006 procedure, Wong administered nitrous oxide ('laughing gas'), and the son subsequently felt light-headed for several hours.
- In 2008, after Wong identified additional cavities, Jing and Ma took their son to a different dentist.
- The new dentist discovered seven cavities and treated them with a white composite filling, rather than silver amalgam, and did not use nitrous oxide.
- After researching the materials online, Tai Jing posted a highly negative one-star review of Wong on Yelp.com.
- The review criticized Wong's use of silver amalgam due to its mercury content and referred to nitrous oxide as a 'general anesthetic' that 'harms a kid's nerve system.'
- The review also stated that a new dentist found seven cavities after his son had been treated by Wong, and advised readers to 'Avoid her like a disease!'
Procedural Posture:
- Plaintiff Yvonne Wong filed a complaint in a California trial court against defendants Tai Jing, Jia Ma, and Yelp.com, alleging libel per se, and intentional and negligent infliction of emotional distress.
- The defendants filed a joint special motion to strike Wong's complaint under California's anti-SLAPP statute.
- Prior to the hearing on the motion, Wong voluntarily dismissed Yelp.com from the lawsuit without prejudice.
- The trial court denied the anti-SLAPP motion, finding that although the Yelp review was protected speech, Wong had established a probability of prevailing on the merits against Jing and Ma.
- Defendants Jing and Ma appealed the trial court's order denying their special motion to strike.
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Issue:
Does a negative online review of a dental practice on a public website, which criticizes the use of certain materials and procedures, constitute protected speech on an issue of public interest under California's anti-SLAPP statute, thereby requiring the plaintiff to demonstrate a probability of prevailing on their claims for libel and emotional distress?
Opinions:
Majority - Rushing, P. J.
Yes, a negative online review discussing controversial materials and procedures is protected speech on an issue of public interest, but the plaintiff may proceed with a libel claim if they can show a probability of proving the review contains provably false and defamatory implications. The court engaged in the two-step anti-SLAPP analysis. First, it found the defendants met their burden to show the conduct was protected speech. The review was posted on Yelp.com, a public forum, and it implicated issues of public interest—namely, the public controversy and discussion regarding the safety of silver amalgam fillings containing mercury and the use of nitrous oxide on children. The statements went beyond a mere private dispute. Second, the court analyzed whether Wong demonstrated a probability of success on her claims. It concluded Wong failed to show probable success against Ma, as there was no evidence Ma participated in writing or posting the review. Regarding the libel claim against Jing, the court found Wong did meet her burden. A jury could reasonably conclude the review contained provably false and defamatory implications: 1) that Wong failed to warn them about mercury, when in fact she had obtained consent; 2) that Wong misdiagnosed her son by missing cavities; and 3) that Wong used a dangerous 'general anesthetic,' when expert testimony established nitrous oxide is a safe analgesic in this context. However, the court found Wong failed to show a probability of success on her claims for intentional and negligent infliction of emotional distress, because her declaration of losing sleep, stomach upset, and anxiety did not meet the high legal standard for 'severe' or 'serious' emotional distress.
Analysis:
This decision clarifies the application of California's anti-SLAPP statute to online consumer reviews, establishing that such reviews receive First Amendment protection when they touch upon broader issues of public interest like health and safety. The ruling sets a precedent that consumer criticism on platforms like Yelp is not merely a private dispute but can be part of a larger public discourse, making it harder for businesses to sue reviewers for defamation. However, the court's analysis also reinforces that this protection is not absolute; a plaintiff can overcome an anti-SLAPP motion by presenting a prima facie case that the review contains provably false factual assertions or implications. The decision also underscores the high evidentiary bar for proving severe emotional distress, likely discouraging plaintiffs from appending such claims to defamation lawsuits based on the same conduct.
