Judge Bruce G. Iwasaki, Case 23STCV01252 2023-03-07 Tentative Ruling

Responding Party: Plaintiffs Wave Plastic Surgery Center, Inc., Ben Lee, Jonathan Shifren

In this defamation action, Wave Plastic Surgery Center, Inc. and its doctors, Ben Lee and Jonathan Shifren (collectively Plaintiffs) sued Lezlye Ortiz (Defendant or Ortiz). Plaintiffs alleged that Ortiz underwent a procedure in their offices for liposuction and fat transfer. During the post-procedure examination, Ortiz allegedly demanded from Plaintiffs a “settlement” payment or she would post a negative review about Plaintiffs on the Yelp consumer review website.

The Complaint alleges that on December 29, 2022, Ortiz posted a 13-page, single-spaced review on Yelp titled “Please please please stay away from WAVE PLASTIC SURGERY!!!!”[1] The review details the events leading up to and after the procedure, between September 28 through December 22, 2022. The Complaint focuses on the following statements from the review: “this was a botched fat transfer to the hips . . . Dr. Lee performed liposuction to my entire lower back without my permission making my upper buttocks area flat and leaving permanent damage (negligent actions) . . . His actions have left me emotionally distressed, with physical pain, and in need of a costly revision (s) . . . Dr. Lee gave me no hope or took any type of accountability . . . In my opinion, he injected massive amounts of fat into the wrong sections . . . There was a big miscommunication on their end . . . Dr. Ben Lee had injected too much fat into the upper area of my hips (laterals) and not the area I had requested . . . I had been suffering since the surgery and now I had no hope for a revision any time soon . . . Dr. Lee's demeanor was nonchalant without any concern; he never took accountability . . . he never apologized for how he made me feel . . . I had been seeing negative reviews about Dr. Ben Lee and Shifren online including lawsuits . . . Dr. Lee never told me to monitor for specific symptoms . . . I never received a concrete answer . . . the liposuction of the calves/ankles resulted in skin irregularities . . . [and] too much liposuction was conducted on the left calf creating a large concave deformity.”

One month later, Plaintiffs filed this action against Defendant for libel, slander, false light, negligence, negligent/intentional infliction of emotional distress, and negligent/intentional interference with prospective economic advantages. Defendant Ortiz moves to strike the entire Complaint as a strategic lawsuit against public participation (SLAPP). (Code Civ. Proc., § 425.16.) She filed no declaration with the motion. Plaintiffs filed an opposition, contending that the Yelp review does not involve a matter of public interest and that their defamation claims have merit. Defendant filed a reply, arguing for the first time that the speech concerns the “choice of medical care” and that all causes of action lack merit.

After Defendant filed her reply, Plaintiffs filed objections to the new arguments in the reply brief and declaration. The Court sustains all of Plaintiffs’ objections to the reply and accompanying evidence. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538 [affirming striking new evidence submitted with reply].) Defendant’s reply makes new arguments that were not made in the moving papers.

Defendant Ortiz fails to offer sufficient evidence or cite governing law. While Defendant’s Yelp review was a statement made in a public forum, it was not speech in connection with a public issue or issue of public interest. Therefore, Defendant’s motion to strike the Complaint is denied on the first prong of the anti-SLAPP analysis.

“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, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Code Civ. Proc., § 425.16, subd. (b)(1).) The purpose of the statute is to identify and dispose of lawsuits brought to chill the valid exercise of a litigant’s constitutional right of petition or free speech. (§ 425.16, subd. (a); Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1055-1056.)

Courts employ a two-step process to evaluate special motions to strike strategic lawsuits against public participation (SLAPP). (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61.) First, the defendant must show that the challenged lawsuit arises from protected activity, such as an act in furtherance of the right of petition or free speech. (Ibid.) “The moving defendant bears the burden of identifying all allegations of protected activity, and the claims supported by them.” (Baral v. Schmitt (2016) 1 Cal.5^th 376, 396.) In the second step, it “ ‘is then up to the plaintiff to rebut the presumption by showing a reasonable probability of success on the merits.’ ” (Equilon, supra, 29 Cal.4^th at p. 61.) In determining whether the plaintiff has carried this burden, the trial court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Code Civ. Proc., § 425.16, subd. (b)(2); see Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.)

In the first step of the analysis, Defendant must demonstrate that Plaintiffs’ claims arise from one of four categories of protected activity. An “ ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (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, or (4) 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.” (Code Civ. Proc., § 425.16, subd. (e).)

Defendant fails to meet her burden to show that the review arises from protected activity because she submits no evidence.

Defendant bears the burden of making a “ ‘ “threshold prima facie showing that the defendant’s acts, of which the plaintiff complains, were ones taken in furtherance of the defendant’s constitutional rights of petition or free speech in connection with a public issue.” ’ ” (Governor Gray Davis Committee v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 456; Baral v. Schnitt (2016) 1 Cal.5th 376, 396 [“At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them”].) “The motion must be supported (and opposed) by declarations stating facts upon which the liability of defense is based.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 7:980; Code Civ. Proc., § 425.16, subd. (b).)

In her moving papers, Ortiz argues that her review falls under the third and fourth category, which involve “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,” 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.” (Code Civ. Proc., § 425.16, subd. (e).) However, Ortiz provides no declaration with her moving papers and almost no analysis on how the law applies to the facts here. Ortiz merely cites numerous cases and, in conclusory fashion, states that her “consumer opinions and experiences with Plaintiffs’ medical services . . . clearly arise from protected free speech and conduct in furtherance thereof.” There are no quotations or discussions of the actual review itself.

Ortiz’s statement in her reply brief that “[e]vidence is king in anti-SLAPP practice” rings hollow when she herself fails to provide any evidence or discussion on the statements made in this case. However, even if the Court assumed that Defendant depended on the Complaint’s allegations, the motion still fails.

The Yelp review does not implicate a matter of public interest because it concerns a private dispute that does not directly affect a large number of people beyond the direct participants.

Assuming that Ortiz contends this action arises from her Yelp review statements quoted in the Complaint, then the issue here is whether those statements “encourage[d] continued participation in matters of public significance” or involved a public issue or an issue of public interest. (Code Civ. Proc., § 425.16, subds. (a), (e).)

To determine whether speech or conduct is in connection with a public issue or issue of public interest, the court engages in “a two-part analysis rooted in the statute’s purpose and internal logic. 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. (§ 425.16, subd. (e)(4).) Second, we ask what functional relationship exists between the speech and the public conversation about some matter of public interest.” (FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 149 (FilmOn).) As our Supreme Court explained: “In articulating what constitutes a matter of public interest,” we look to considerations “such as whether the subject of the speech or activity ‘was a person or entity in the public eye’ or ‘could affect large numbers of people beyond the direct participants’ [citation]; and whether the activity ‘occur[red] in the context of an ongoing controversy, dispute or discussion’ [citation], or ‘affect[ed] a community in a manner similar to that of a governmental entity’ [citation].” (

Id. at pp. 145-146.)

The Supreme Court has elaborated on its analysis in FilmOn. In Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 621 (Rand), the Court acknowledged the consensus view that “ ‘ “a matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest,” ’ and that ‘ “[a] person cannot turn otherwise private information into a matter of public interest simply by communicating it to a large number of people.” ’ ” The Court further recognized that “[a]t a sufficiently high level of generalization, any conduct can appear rationally related to a broader issue of public importance. What a court scrutinizing the nature of speech in the anti-SLAPP context must focus on is the speech at hand, rather than the prospects that such speech may conceivably have indirect consequences for an issue of public concern.” (Rand, supra, 6 Cal.5th at p. 625.) The Rand court identified “three nonexclusive and sometimes overlapping categories of statements” that qualify as public interest: “[1] when the statement or conduct concerns a ‘person or entity in the public eye’ . . . [2] when it involves ‘conduct that could directly affect a large number of people beyond the direct participants’ . . . [3] when it involves ‘a topic of widespread, public interest.’ ” (Id. at p. 621.)

The concept of “public interest” and the application of these three categories were explored further in Woodhill Ventures, LLC v. Yang (2021) 68 Cal.App.5th 624 (Woodhill Ventures).) There, the defendant was dissatisfied with a bakery’s birthday cake for his son, claiming that it was decorated with realistic-looking drugs. (Id. at p. 626.) Defendant posted numerous complaints about the cake over social media and threatened to “cancel” the bakery. (Id. at p. 628.) Plaintiff bakery then sued for defamation and defendant filed an anti-SLAPP motion. The trial court denied the motion, finding that the statements did not involve the public interest. (Id. at p. 630.)

The Court of Appeal affirmed, recognizing that almost any statement has “pervasive potential” to “bear some connection to an issue of public significance,” but that a “tangential relationship is not enough.” (Woodhill Ventures, supra, 68 Cal.App.5th at p. 632.) The court rejected the defendant’s argument on each of the three categories. As to the first two, the defendant’s celebrity status alone did not confer protection on the statements and a private dispute cannot be made into an issue of public interest merely through wide communication to the public. (Id. at pp. 633-634.)

On the third category, in a discussion pertinent to Ortiz’s denunciation of Plaintiffs in her Yelp review, the Court of appeal acknowledged that “while ‘candy confusion’ might be an issue of public interest, [defendant’s] statements did not discuss the danger of children confusing medications for candy. That was not [defendant’s] point. [Defendant’s] statements did not seek public discussion of anything. They aimed to whip up a crowd for vengeful retribution.” (Id. at pp. 632-633.) Defendant also argued there was widespread, public interest because the complaints provided “consumer protection information.” The Court of Appeal rejected this claim because the statements did not go “beyond recounting a one-time dispute between a buyer and a seller.” (Id. at p. 634.)

More recently, the Supreme Court has further clarified that courts should consider the “broader context” in which the speech is made. (Geiser v. Kuhns (2022) 13 Cal.5th 1238, 1253 (Geiser).) In Geiser, the defendants were long-term residents that fell behind in their mortgage. The bank foreclosed on their home and plaintiff purchased the property at an auction. Defendants then recruited an agency whose mission was to “ ‘ fight against the displacement of long-term residents.’ ” After several unsuccessful meetings with the plaintiff’s executives to negotiate a repurchase of the home, defendant homeowners organized a demonstration outside the plaintiff’s CEO’s home. The CEO then filed for a restraining order and defendants filed an anti-SLAPP motion. The trial court found that the demonstration did not implicate a public issue and the Court of Appeal affirmed.

In reversing the Court of Appeal, the Supreme Court noted the importance of evaluating the “ ‘ordinary contextual cues affecting how people generally evaluate speech.’ ” (Geiser, supra, 13 Cal.5th at p. 1252.) “This context includes the identity of the speakers or participants (25 to 30 members of a housing advocacy organization), the picket’s location and audience (a public sidewalk outside the residence of the CEO of a major real estate development company), and its purpose and timing (to protest residential displacement practices immediately after a couple had been evicted from their long-term home).” Thus, the high court held that “FilmOn’s first step is satisfied so long as the challenged speech or conduct, considered in light of its context, may reasonably be understood to implicate a public issue, even if it also implicates a private dispute. Only when an expressive activity, viewed in context, cannot reasonably be understood as implicating a public issue does an anti-SLAPP motion fail at FilmOn’s first step.” (13 Cal.5th at pp. 1253-1254.) Finally, the court noted that FilmOn’s first step “calls for an objective inquiry, without deference to the movant’s framing or personal motivations” and that a court should take the position of a “reasonable, objective observer.” (Id. at pp. 1254-1255 [“the touchstone is objective reasonableness”].)

Ortiz made her statements on Yelp, a public website that allows consumers to post reviews on various businesses. Such websites are public forums for purposes of the anti-SLAPP statute. (Barrett v. Rosenthal (2006) 40 Cal.4th 33, 41, fn. 4; see Wong v. Jing (2010) 189 Cal.App.4th 1354, 1366 (Wong) [collecting cases].) However, not every Web site post involves a public issue. (Wong, supra, 189 Cal.App.4th at p. 1366.) For example, in Wong, the defendants complained on Yelp that the dentist used general anesthesia on their child, which “harms a kid’s nerve system” and used “silver amalgams [sic], [which] has a small trace of mercury in it.” (Id. at p. 1361.) In finding that the review implicated a public interest, the appellate court noted that the posting “went beyond parochial issues concerning a private dispute about particular dental appointments. It implicitly dealt with the more general issues of the use of nitrous oxide and silver amalgam, implied that those substances should not be used in treating children, and informed readers that other dentists do not use them.” (Id. at p. 1367.)

In contrast, Ortiz’s tirade focused on her personal experiences with Plaintiffs. The first few pages of the review discuss Ortiz’s desire for a “curvy figure with rounder and more even hips.” After the procedure with Dr. Lee on October 22, 2022, she describes being very unhappy with the results, which caused her great distress, including vomiting three times that day and “crying hysterically.” In the subsequent days, Ortiz describes returning to Dr. Lee, and requesting revision surgery. After Dr. Lee informed her that there needed to be more time for the swelling to reduce, this caused Ortiz to further spiral into a depression, causing her “anguish” and “chest pains.” She then spoke to the medical director of Wave Plastic Surgery, Dr. Jonathan Shifren, about the “botched fat transfer (deformity).” Dr. Shifren reportedly assured Ortiz that “they would fix the problem” and reiterated that she should wait a few months. She then indicates she sought a second opinion from her former plastic surgeon, Dr. Perry. Ortiz requested if Plaintiffs would be willing to “pay for the revision and . . . the possibility of going to arbitration if [they] couldn’t reach an agreement.” Ortiz’s review then describes that on November 9, 2022, Dr. Lee performed a drain or flush procedure to remove fat cells. After that procedure, Plaintiffs reportedly agreed to “reach a settlement we were all happy with.” The review concludes that after several more weeks and follow-up appointments, Plaintiffs “failed to process the ‘settlement’ they promised” and Ortiz reports that she is left with “Emotional distress Physical pain (hips, left calf and lower back) Monetary loss (procedures, gasoline, Lyft rides.)

The Complaint’s recitation of the review is even more limited. Plaintiffs cite to various statements that focuses only on the specific interaction between Ortiz and the doctor. For example, that Dr. Lee’s “actions have left me emotionally distressed”; “I had been suffering since the surgery and now I had no hope for a revision any time soon”; “Dr. Lee’s demeanor was nonchalant without any concern”; “I never received a concrete answer.” None of these statements speak to any issues beyond the scope of the procedure conducted by Dr. Lee.

Ortiz has failed to meet her burden to show how these statements concern the public interest. Defendant fails even to acknowledge the governing California Supreme Court cases FilmOn, Rand, and Geiser. Applying the Rand categories, neither Ortiz nor Plaintiffs are persons or entities “in the public eye.” Second, Ortiz does not argue that the review somehow affects a “large number of people beyond the direct participants.” Indeed, like in Woodhill Ventures, the review here was not a “discussion of anything . . . [but] only a diatribe” that was posted, in part, because Plaintiffs allegedly failed to make any settlement payments to her. Ortiz’s reply brief argues the third Rand category by asserting that the review is about “the choice of medical care.” Putting aside that new arguments are not allowed in reply papers, this is unavailing. The review here merely recounts a “one-time dispute between” the consumer and provider. (Woodhill Ventures, supra, 68 Cal.App.5th at p. 634 [“Consumers are interested in the reactions of other consumers, but a single report is the classic small sample, subject to the classic small sample error].)

Ortiz’s cited cases are distinguishable. The statements made in Summit Bank v. Rogers (2012) 206 Cal.App.4th 669, 694 discussed broader topics of “questioning the Bank’s financial stability and its management decisions . . . in the wake of the 2008 economic downturn, which ushered in widespread skepticism in the underlying financial strength of our country’s financial institutions.” Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 899 did not involve a consumer, but a “consumer watchdog” who identified brokers she believes “have engaged in unethical or questionable practices, and provides information for the purpose of aiding viators and investors to choose between brokers.” Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 17-18 involved a patient of a prominent plastic surgeon who “created a Web site relating her experiences with [the doctor], as well as information and advice for those considering plastic surgery.” Notably, the site contained advice, information, tips on choosing a plastic surgeon, references to other site and resources, and a “ ‘Things to look out for’ ” section that described warning signs when selecting a plastic surgeon. The Court of Appeal found that the overall site “contributed to the general debate over the pros and cons of undergoing cosmetic surgery.” (Gilbert, supra, 147 Cal.App.4th 13, 24.) Finally, ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 998, involved a plaintiff company that was considering a merger owned by defendants’ businesses. The defendants subsequently made disparaging comments about the plaintiff on a messaging board. The appellate court found that the plaintiff was a “publicly traded company with as many as 18,000 investors and had inserted itself into the public arena by means of numerous press releases.” Thus, the defendant’s comments fell within the public interest because the “activities of private entities . . . may impact the lives of many individuals, such as ‘product liability suits, real estate or investment scams, etc.’ ” (Id. at pp. 1007-1008.)

The cases above involve some broad discussion of public interest. Ortiz’s review was limited to her interactions with Plaintiffs relating to her liposuction procedure. The statements did not invite or promote public discussion on any broad issue of public interest and was merely a negative review on what she perceived to be poor bedside manner and customer service. Ortiz fails to show that the content of her Yelp review implicated a public issue or issue of public interest. (FilmOn, supra, 7 Cal.5th at p. 149.) Even if we assume – despite the lack of evidence – that Ortiz’s philippic concerned “medical choice,” nothing in it contributed to the public discussion of that issue. (Id. at pp. 149-152.)

In her reply, Defendant contends that the review is protected because it was made on a “platform set up by a business for its consumers to provide reviews.” Defendant fails to put forth any evidence that Yelp is somehow operated by Plaintiffs. In any event, as discussed above, the nature of the forum does not automatically confer public interest. (See Wong, supra, 189 Cal.App.4th at p. 1366 [“although ‘not every Web site post involves a public issue’ . . ., consumer information that goes beyond a particular interaction between the parties and implicates matters of public concern that can affect many people is a generally deemed to involve an issue of public interest for purposes of the anti-SLAPP statute”].) Unlike in Gilbert or Wong, Ortiz’s review does not discuss the pros and cons of a plastic surgeon or address a broader issue that extends beyond parochial issues (such as mercury usage in silver amalgams). (Gilbert, supra, 147 Cal.App.4th at p. 24; Wong, supra, 189 Cal.App.4th at p. 1367.) Contrary to Defendant’s contention that this is not a “one-off . . . spouting off” as in Woodland Ventures, this is exactly that – Ortiz’s complaints only pertain to her procedure on October 22, 2022 for liposuction and fat transfer.

Accordingly, Ortiz’s review was not protected activity because it was not made in connection with an issue of public interest. Because Defendant has failed to meet her burden of showing that her speech implicates an issue of public interest, the Court need not address the second prong. (ValueRock TN Properties, LLC v. PK II Larwin Square SC LP (2019) 36 Cal.App.5th 1037, 1050.)

“If the court finds that [the] special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.” (Code Civ. Proc. § 425.16, subd. (c)(1); see § 128.5, subd. (a) [permitting court to order party “to pay the reasonable expenses, including attorney's fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.”].) This provision is designed to “discourage[ ] [the filing of] unmeritorious strike motions.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1137.) The imposition of sanctions for a frivolous anti-SLAPP motion is mandatory. (Foundation for Taxpayer & Consumer Rights v. Garamendi (2005) 132 Cal.App.4th 1375, 1388.) “ ‘Frivolous in this context means that any reasonable attorney would agree the motion was totally devoid of merit.’ ” (L.A. Taxi Cooperative, Inc. v. The Independent Taxi Owners Assn. of Los Angeles (2015) 239 Cal.App.4th 918, 932.)

No reasonable attorney would believe that Ortiz’s review was covered by the anti-SLAPP statute. Attorney’s fees against Defendant are therefore mandatory. Ortiz’s brief was devoid of any analysis of the actual facts in this case and failed to cite any of the recent and relevant Supreme Court case law. The Court will set a further hearing to address attorney’s fees.

[1] The Complaint indicates the review was attached as Exhibit A, but there was no attachment; instead, it was attached to the opposition to the motion to strike. However, the review is mere text; there is no indication this was the same review posted on Yelp. Nevertheless, Defendant did not object to it; the Court considers the Yelp review.

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