Judge: William A. Crowfoot, Case: 22STCV13792, Date: 2023-02-02 Tentative Ruling

Case Number: 22STCV13792    Hearing Date: February 2, 2023    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – NORTHEAST DISTRICT

I.            BACKGROUND

On February 27, 2019, plaintiff Rosevianney C. Ogumsi (“Plaintiff”) filed this medical malpractice action. 

On September 26, 2022, Plaintiff filed the operative Second Amended Complaint (“SAC”) against defendants Richard Dale Gentile, D.D.S., and Heydar Hamid Shahrokh, D.D.S., dba Comfort Dental Center (erroneously sued as Comfort Dental Center) (collectively, “Defendants”), asserting causes of action for (1) professional negligence (dental malpractice), (2) intentional in infliction of emotional distress, (3) negligent infliction of emotional distress, (4) unlawful, unfair, and/or fraudulent business practices (Bus. & Prof. Code § 17200, et seq), and (5) defamation.  Trial is not yet scheduled. 

Defendants now move for an order striking the fifth cause of action for defamation in the SAC, pursuant to Code of Civil Procedure section 425.16 (the anti-SLAPP statute), and request monetary sanctions of $3,385 against Plaintiff.  

II.          ALLEGATIONS IN THE SAC

This is a dental malpractice action arising out of injury to Plaintiff suffered in the course of the Defendants’ examination, diagnosis, care, and treatment. (SAC, ¶ 1.)

On or about March 2020, Plaintiff consulted defendant Richard Dale Gentile, D.D.S. (“Dr. Gentile”), who performed a root canal on Plaintiff after advising Plaintiff that she needed one.  (SAC, ¶ 10.)  While performing the root canal, Plaintiff began to bleed excessively and felt excruciating pain all over her mouth, head, and jaw. (SAC, ¶ 10.)  Gentile gave Plaintiff antibiotics, pain medication, and a one-week appointment to continue work on the root canal.  (SAC, ¶ 10.)  When she went back to Gentile’s dental office to see what could be done about the symptoms she was having (e.g., extreme pain and bleeding), Gentile told her could not see her, and proceeded to give her more antibiotics, and follow-up appointment.  (SAC, ¶¶ 11, 12, 13.)  When she went back to her follow-up appointment, Gentile continued performing the root canal.  (SAC, ¶ 15.)  However, instead of getting better, Plaintiff’s pain and bleeding worsened, yet the defendant only gave her another one-week appointment to continue the root canal.  (SAC, ¶ 16.)  When Plaintiff returned to Gentile’s office for the third time, the defendant continued working on the root canal but then stopped, notifying Plaintiff later that he was unable to fix something (but refused to disclose what) that he wanted to correct before continuing the root canal.  (SAC, ¶ 17.) 

Gentile referred Plaintiff to another dental office, through which she discovered that (1) there were broken foreign bodies left in her teeth, (2) she had sustained some nerve damage possibly in the hands of Gentile, (3) her root canal could not be completed without first removing the foreign bodies, and (4) those foreign bodies could only be removed (if at all) by a specialist.  (SAC, ¶ 18.)  Plaintiff’s symptoms did not get better, but Gentile essentially gave her a run around before referring her to another dentist – Defendant Heydar Hamid Shahrokh, D.D.S. (“Shahrokh”), dba Comfort Dental Center – to have the foreign bodies removed and for a root canal.  (SAC, ¶¶ 20-22.) 

In early 2021, Defendant Shahrokh placed a temporary crown on Plaintiff, but when Plaintiff returned for her appointment to get a permanent crown, Shahrokh insisted that Plaintiff should go back to Gentile.  (SAC, ¶ 23.) 

Plaintiff rejected the idea of going back to Gentile and requested a copy of her dental records to seek treatment from another dentist of her choice, but Shahrokh refused, demanding Plaintiff put her request in writing.  (SAC, ¶ 23.)  Plaintiff complied, but was then informed that her dental record had been sent to Gentile’s office.  (SAC, ¶ 23.) 

On or about June 11, 2021, Plaintiff went to Gentile’s office to retrieve her dental records but was informed that the office never received records from Shahrokh’s office.  (SAC, ¶ 24.)  After a nurse told Plaintiff to put her request for records in writing and Plaintiff complied, Plaintiff was asked to return in about a week to pick up her dental records from Gentile.  (SAC, ¶ 25.)  About a week later, Plaintiff arrived at 10:00 a.m. to pick her records as instructed, but when she reminded a nurse at 2:00 p.m. that she was still waiting for the records, Gentile asked her to leave and threatened to call the police if she refused.  (SAC, ¶ 25.)  When Plaintiff did not leave, Gentile instructed a nurse to call the police and the nurse did so, giving the police a physical description of Plaintiff.  (SAC, ¶ 25.)  Plaintiff waited until about 3:30 p.m., and then left the office on her own.  (SAC, ¶ 25.)  The police never arrived during the time Plaintiff was waiting there.  (SAC, ¶ 25.) 

On or about June 18, 2021, plaintiff went back to Shahrokh’s office, the Comfort Dental Center, to inform the defendant that Gentile’s office stated they never received Plaintiff’s dental records from Shahrokh’s office.  (SAC, ¶ 26.)  Plaintiff was asked to have a seat and she did, for 3 hours without being assisted, and, therefore, left.  (SAC, ¶ 26.) 

A week later, she went back to Comfort Dental Center to get the records and was told to wait because Shahrokh was on break.  (SAC, ¶ 27.) 

However, when Shahrokh came back, he ordered Plaintiff to leave his office immediately or he would call the police.  (SAC, ¶ 27.)  Plaintiff got up and left as a result of the threat.  (SAC, ¶ 27.)  Plaintiff returned again to Shahrokh’s office to obtain her dental records, this time with a written request from another dentist for her records, but the office again refused.  (SAC, ¶ 28.)  Plaintiff went several times to the office to get her records, to no avail.  (SAC, ¶ 28.) 

On or about August 27, 2021, Plaintiff went to Comfort Dental Center for the last time to request her dental records as she had done on numerous occasions, when Shahrokh called the police and reported that Plaintiff was trespassing on his place of business.  (SAC, ¶ 29.)  The officers instructed Shahrokh and the Comfort Dental Center to give Plaintiff her dental records, but they refused.  (SAC, ¶ 29.)  The officers concluded that the trespassing claim was unfounded, the issue was a civil matter not a criminal, and left.  (SAC, ¶ 29.) 

III.        LEGAL STANDARD

The anti-SLAPP statute is “a mechanism through which complaints that arise from the exercise of free speech rights can be evaluated at an early stage of the litigation process and resolved expeditiously.”  (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073 [internal quotations omitted].)  Courts use a two-step process for determining whether an action is a strategic lawsuit against public participation, or a SLAPP.  First, the court determines whether the defendant has established that the challenged claim arises from protected speech.  (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)  If such a showing has been made, the court “determines whether the plaintiff has demonstrated a probability of prevailing on the claim.”  (Ibid.)

III.      DISCUSSION

A.   Prong One: Protected Activity

“[T]he only thing the defendant needs to establish to invoke the protection of the SLAPP statute is that the challenged lawsuit arose from an act on the part of the defendant in furtherance of her right of petition or free speech.”  (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 307; see also Code Civ. Proc., § 425.16, subd. (e).)  In determining whether a cause of action arises from protected conduct, the court focuses on “the allegedly wrongful and injury-producing conduct that provides the foundation for the claims.”  (Castleman v. Sagaser (2013) 216 Cal.App.4th 481, 490-491.)  “[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 [emphasis in original].) In making this determination, the court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.”  (Ibid.)

Here, Defendants contend that Plaintiff’s fifth cause of action for defamation is based on protected activity because “[r]eporting another person to the police, with the intention of prompting that person’s arrest is an instance of petitioning redress of grievances to an official body.”  (Motion, p. 9:4-7.)

Indeed, the fifth cause of action for defamation alleges that the Defendants “made false statements of fact about [Plaintiff], namely that Plaintiff (their patient) … was engaging on a criminal conduct of trespassing on their business property,” and that “[t]he false statements were made to Los Angeles Police department when Plaintiff was on Defendants’ business property for the purpose of obtaining her dental record.”  (SAC, ¶¶ 72, 73.) 

“The law is that communications to the police are within SLAPP.”  (Comstock v. Aber (2012) 212 Cal.App.4th 931, 941 (“Comstock”) [citing several cases where the California Court of Appeal found that complaints to police; see also Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1570 (“Siam”) [“Communications that are preparatory to or in anticipation of commencing official proceedings come within the protection of the anti-SLAPP statute”].)  For example, in Siam, the Court of Appeal held that “defendant’s reports of child abuse to persons who are bound by law to investigate the report or to transmit the report to the authorities are protected by the statute.”  (Ibid.)

Here, the SAC alleges that Defendants made false trespassing allegations to the police and, as Defendants argue that, as such, those statements are protected activity. 

In opposition, Plaintiff argues that the Defendants have not met their burden of showing that Plaintiff’s fifth cause of action is based on protected activity because (among other things) the statements were not made in a public forum (i.e., they took place in the Defendants’ place of business) and they did not concerns issues of public concern.  (Opposition, pp. 4:7-6:9.) 

“An act in furtherance of a person’s right of petition or free speech includes ‘any … oral statement … made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law ....’ ([Code Civ. Proc.] § 425.16, subd. (e).)  ‘It also includes “any … oral statement … 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 ....” [Citation.]’”  (Walker v. Kiousis (2001) 93 Cal.App.4th 1432, 1438 (“Walker”).)

As Defendants point out in their moving papers, “‘u[nder the plain terms of the statute it is the context or setting itself that makes the issue a public issue: all that matters is that the First Amendment activity take place in an official proceeding or be made in connection with an issue being reviewed by an official proceeding.’”  (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1116.)  The California Legislature “‘equated a public issue with the authorized official proceeding to which it connects.’  [Citation.]”  (Id. at p. 1117.)

A complaint to a police officer is considered activity made in connection with an official proceeding authorized by law.  (Comstock, supra, 212 Cal.App.4th at p. 942, citing and quoting Walker, supra, 93 Cal.App.4th at p. 1439.)  Here, Plaintiff’s defamation claim is based on statements the Defendants made to the police for the purposes of receiving police assistance. 

For the reasons set forth above, the Court finds that the Defendants have met their burden of establishing that the challenged claim arises from protected speech.

B.   Prong Two: Probability of Prevailing

To establish the likelihood of prevailing, a “plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.”  (Premier Med. Mgmt. Sys., Inc. v. California Ins. Guarantee Assn. (2006) 136 Cal.App.4th 464, 476 [internal quotations omitted].)  In making the prong two determination, “the court shall consider 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).)  “The court does not, however, weigh [defendant’s] evidence against the plaintiff’s, in terms of either credibility or persuasiveness. Rather, the defendant’s evidence is considered with a view toward whether it defeats the plaintiff’s showing as a matter of law, such as by establishing a defense or the absence of a necessary element.”  (1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 585.)

“Defamation constitutes an injury to reputation; the injury may occur by means of libel or slander.  (Civ. Code, § 44.)”  (Shively v. Bozanich (2003) 31 Cal.4th 1230, 1242.)  “In general, leaving aside certain qualifications …, a written communication that is false, that is not protected by any privilege, and that exposes a person to contempt or ridicule or certain other reputational injuries, constitutes libel.”  (Ibid. [emphasis added].)  “A false and unprivileged oral communication attributing to a person specific misdeeds or certain unfavorable characteristics or qualities, or uttering certain other derogatory statements regarding a person, constitutes slander.”  (Ibid. [emphasis added].)

This case involves slander because Plaintiff alleges that the Defendants made false, oral communications to the police that she was trespassing in their place of business.

“‘Trespass is an unlawful interference with possession of property.’  [Citation.]”  (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 261.)  “The elements of trespass are: (1) the plaintiff’s ownership or control of the property; (2) the defendant’s intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant’s conduct was a substantial factor in causing the harm.”  (Id. at p. 262.)

To show that she has a probability of prevailing on her fifth cause of action for defamation-slander, Plaintiff makes the following (among other) arguments.  

First, state and federal statutes like the Health Insurance Portability and Accountability Act of 1996 (“HIPPA”) required the Defendants and their officers to provide Plaintiff (their patient) with a copy of her dental records if requested. 

Second, most dentists maintain physical records at their officers as the record includes the patient’s chart.  Therefore, it follows that to inspect or obtain a copy of the records, one has to go to the dental office that provided treatment.  Here, Plaintiff was never told that the records were not located in Defendants’ offices. 

Third, criminal trespass involves more than mere unauthorized entry onto the property of another.  According to Penal Code section 602, subdivision (k), trespass into land also requires entering the land for the purpose of injuring any property or property rights or with the intention of interfering with, obstructing, or injuring any lawful business.  Here, Plaintiff was there to collect her dental records, which she needed as no other dentist would perform any urgent dental work without first seeing those records. 

However, in Hagberg v. California Federal Bank (2004) 32 Cal.4th 350 (as Defendants point out in their reply), the California Supreme Court held that statements made to the police were absolutely privileged.  Civil Code section 47 “establishes a privilege that bars liability in tort for the making of certain statements.”  (Id. at p. 360.)  “Pursuant to section 47(b), the privilege bars a civil action for damages for communications made ‘[i]n any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to [statutes governing writs of mandate],’ with certain statutory exceptions ….”  (Ibid.)  “The privilege established by this subdivision often is referred to as an ‘absolute’ privilege, and it bars all tort causes of action except a claim for malicious prosecution.”  (Ibid.)  The requirements for malicious prosecution “include malice, lack of probable cause, and termination in the plaintiff's favor.”  (Id. at p. 375.)

Here, Plaintiff has not shown or alleged that the absolute privilege mentioned above does not apply. 

Accordingly, the Court finds that Plaintiff has not shown probability of prevailing on her fifth cause of action for defamation.  

C.   Recoverable Fees

The prevailing party on an anti-SLAPP motion is entitled to an award of fees and costs.  (Code Civ. Proc., § 425.16, subd. (c).)  

Here, the court finds that the Defendants are the prevailing party on the anti-SLAPP motion.  Defense counsel sets forth the basis for the fee award in his declaration in support of the motion.  (Motion, Conley Decl., ¶ 6.)  Counsel seeks $3,385, which consists of a $60 filing fee and 9.5 hours counsel spent on the moving papers, reviewing the opposition, drafting the reply, and appearing at the hearing, at a $350 per hour billing rate.  (Ibid.)

The Court grants the requested attorney’s fees.

IV.         CONCLUSION

          The Special Motion to Strike is GRANTED.

          Plaintiff Rosevianney C. Ogumsi is ordered to pay defendants Richard Dale Gentile, D.D.S., and Heydar Hamid Shahrokh, D.D.S., dba Comfort Dental Center, $3,385 in attorney’s fees.

Moving party to give notice. 

            Parties who intend to submit on this tentative must send an email to the Court at alhdept3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.