Filed 12/11/14 Pham v. Lee CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


RANDAL PHAM,                                                         H039184
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. 1-12-CV-228332)

         v.

JENNY LEE et al.,

         Defendants and Appellants.



         Plaintiff Randal Pham, an ophthalmologist, filed a defamation action against
defendants Jenny Lee and Alvin Lee (the Lees) for statements they made on the Internet
accusing Dr. Pham of fraud, among other things. The Lees moved to strike Dr. Pham’s
lawsuit under Code of Civil Procedure section 425.16, the anti-SLAPP statute (section
425.16). The trial court denied the motion, and the Lees now appeal from the denial.
(§ 425.16, subd. (i).)1
         We conclude that because Dr. Pham has shown a probability of prevailing on the
merits, the trial court did not err in denying the Lees’ motion to strike. Accordingly, we
will affirm the judgment.




         1
             All unspecified statutory references are to the Code of Civil Procedure.
                      I. FACTUAL AND PROCEDURAL BACKGROUND
       Dr. Pham operates an ophthalmology clinic in San José. His patients included
Young Lee (the Lees’ father) and Chinh Tri Truong (the Lees’ grandmother). The
statements at issue arose in connection with Dr. Pham’s treatment of Young Lee and
Chinh Tri Truong.
   A. The Complaint
       On July 12, 2012, Dr. Pham filed a complaint against the Lees in Santa Clara
County Superior Court alleging a single cause of action—defamation. The complaint
alleged that the Lees posted “false, inaccurate, and/or defamatory” statements about
Dr. Pham’s business practices on various Web sites. The complaint also alleged that the
Lees knew or should have known the statements were false, and that they made the
statements “with malice and intent to injure plaintiffs business and business reputation.”
Dr. Pham attached three exhibits to the complaint, which appear to be printouts of the
Lees’ online reviews of Dr. Pham’s business practices.
       Exhibit A to the complaint is a printout of the profile page from the Web site
Yelp.com (Yelp) for an individual identified as “Alvin ‘chipmunk20’ L.” The profile,
which includes the individual’s photograph, specifies his location as Davis, California,
and his hometown as San José. The profile includes a review for Dr. Pham posted on
March 29, 2012, stating: “I’ve taken my grandmother here multiple times for her
appointments and needless to say, this place frustrates me greatly. They overbook every
single day to maximize how much money they make in a day. They told me it shouldn’t
take more than an hour, but in the end I missed an appointment I had because I ended up
waiting for 2.5 hours. This has happened on multiple occasions which I see as very
unprofessional. The reason for setting an appointment is to make sure you don’t waste
time waiting. Sure all of the patient [sic] are mostly senior citizens that don’t mind
waiting for hours because they can interact and socialize with the countless others who
have been waiting, but what about the people who take them there and are forced to wait.

                                             2
If you schedule an appointment for 4:30 and aren’t seen until 6, there is definitely
something wrong with your scheduling system. I highly suggest that you fix that
problem. A free clinic moves faster than this place.”
       Exhibit B to the complaint is a printout of the Yelp profile page for an individual
identified as “Jenny ‘CJ’ V.” The profile includes the individual’s photograph and lists
her location as San José. A review for Dr. Pham posted on June 26, 2012, states: “He’s a
crook. Stay away.”
       Exhibit C to the complaint is a printout of a review of Dr. Pham from the Web site
InsiderPages.com posted by a user named “Jenny L.” from San José. The review, posted
on March 29, 2012, states: “ ‘Fraud.’ They completely breached patient trust by
scamming me out of $200. The doctor said he was going to order special glasses to help
with my vision. He ended up ordering a pair of standard reading glasses you can
purchase from the drug store. Do not trust him. He does this systematically to other
patients as well. I was in the lobby and overheard the exact same problem being reported
by another patient.”
   B. The Anti-SLAPP Motion
       On September 10, 2012, the Lees filed a special motion to strike under
section 425.16, the anti-SLAPP law. They supported the motion with declarations from
themselves, Young Lee, Chinh Thi Truong, and their counsel. The Lees did not deny
making the Internet posts at issue. To the contrary, they included assertions about
Dr. Pham’s practice similar to the complaints made in the Internet posts. Jenny alleged
that she had taken her grandmother to Dr. Pham’s clinic on several occasions, and that
her grandmother had to wait at least 45 minutes on each occasion despite arriving on
time.2 Jenny alleged that Dr. Pham sold her father common drugstore glasses for $199,
and that identical glasses could be purchased elsewhere for less than $16. Her

       2
        When referring to the Lees individually, we refer to them by their first names to
avoid confusion. We intend no disrespect.

                                             3
declaration attached a complaint about Dr. Pham’s sale of the glasses that she had
submitted to the Better Business Bureau. She included a copy of an email exchange with
the Better Business Bureau dated March 30, 2012—the day after the date of the post by
“Jenny L.” on InsiderPages.com.
       Similarly, Alvin’s declaration asserted that he had taken his grandmother to
Dr. Pham’s clinic on multiple occasions, and that they experienced excessive wait times
of up to 70 minutes. Alvin alleged that he observed many other patients waiting in
Dr. Pham’s waiting room because Dr. Pham had overbooked his appointments. Alvin
also repeated Jenny’s assertion that Dr. Pham had sold their father inexpensive drugstore
glasses, which Dr. Pham described as “prescription” glasses, for $199. Alvin alleged that
his father had heard other patients complain about this practice as well.
       Young Lee’s declarations alleged that he visited Dr. Pham on March 27, 2012,
complaining of poor eyesight. Dr. Pham recommended new glasses and told Young he
would order them from a laboratory. Dr. Pham said the glasses would ordinarily cost
$350, but that Dr. Pham would discount them to $199 if Young paid for them in advance.
Young agreed and paid Dr. Pham $199 that evening. When Young showed the glasses to
his family, they determined they were common drugstore glasses available for less than
$16. After the Lees posted their negative online reviews, Dr. Pham agreed to refund
Young $199 for the price of the glasses. Young attached to his declaration a credit card
statement showing that Dr. Pham’s clinic charged him $199 and $50 on March 27, 2012.
Young stated that the $50 charge was for the appointment, and the $199 charge was for
the glasses. The statement shows that the $199 charge was reversed two weeks later.
Young also complained that Dr. Pham was consistently late for his appointments.
       Chinh Tri Truong submitted a declaration stating that she had been Dr. Pham’s
patient for 13 years, and that Dr. Pham never saw her at the appointed times. She
asserted that she always had to wait at least 30 minutes, and that on most occasions, she
had to wait between 45 and 70 minutes.

                                             4
      Counsel for the Lees submitted a declaration attaching abundant documentation of
Dr. Pham’s public appearances and publications. Dr. Pham’s page on Yelp includes a
promotional statement made by Dr. Pham. Counsel’s declaration listed numerous other
Internet Web sites where Dr. Pham’s professional, promotional, and advertising materials
can be found. These include promotional videos on YouTube.com and other Web sites, a
public blog authored by Dr. Pham, appearances at public meetings of healthcare
professionals, numerous publications in scholarly journals, and documentation of
Dr. Pham’s memberships on various public committees and boards. Counsel asserted
that Dr. Pham is a regular public speaker at various conventions and symposia around the
country, and that Dr. Pham hosted a talk show about eye surgery on an AM radio station.
      In opposition to the anti-SLAPP motion, Dr. Pham filed a declaration denying that
he overbooks his patients and stating that his office accommodates walk-in patients as
well as patients who are late for their appointments. He denied that he charged Young
Lee $199 for the glasses, and he denied telling Young the glasses cost that amount.
Dr. Pham stated that the charge of $199 was for services rendered in addition to the
glasses. Dr. Pham also submitted a declaration from a “physician practice management
expert” who considered the high volume of Dr. Pham’s practice and his accommodation
of walk-in patients. The expert stated that Dr. Pham’s booking practices were normal and
did not constitute “overbooking.” Counsel for Dr. Pham attached a declaration to
authenticate the Web site pages with the Lees’ negative reviews of Dr. Pham.
      The trial court denied the Lees’ anti-SLAPP motion by written order on
December 14, 2012. The court ruled that the Lees had failed to meet their burden of
showing that their allegedly defamatory statements were protected under section 425.16
as statements made “in connection with an issue of public interest.”
   C. Motion to Augment
      Dr. Pham moves to augment the record on appeal with several documents filed in
the trial court. These documents include his complaint, his opposition to the anti-SLAPP

                                            5
motion, and the declarations and exhibits attached to them. The Lees oppose the motion
as untimely and prejudicial.
       Under Rule 8.155 of the Rules of Court, a reviewing court may, at any time, order
the record augmented on a party’s motion to include any document filed in the case in
superior court. The Advisory Committee Comment to the rule states that courts may
consider “whether the motion is made within a reasonable time and is not for the purpose
of delay.”
       The Lees do not dispute that the documents at issue were filed in the trial court.
Rather, they complain that Dr. Pham made no effort to designate the record below, and
that he instead waited until after the Lees filed their opening brief on appeal before
moving for augmentation in this court. The Lees urge us to follow People v. Preslie
(1977) 70 Cal.App.3d 486, 492, holding that “informal requests for augmentation made
after a reasonable time has expired from receiving the record on appeal, and particularly
as late as those contained in briefs, will be denied absent a strong showing of unusual or
unavoidable circumstances giving rise to the delay.” The Lees contend that because
Dr. Pham waited until after they filed their opening brief, they would be prejudiced by
subsequent augmentation.
       Ordinarily, we might find the Lees’ argument convincing. However, the Lees
themselves did not include the complaint in their designations. It is unreasonable to think
a reviewing court could adjudicate this matter without the complaint. Appellants could
not mount a meaningful appeal without it; indeed, the Lees’ opening brief included
numerous references to both the complaint and Dr. Pham’s opposition to their anti-
SLAPP motion despite the absence of these documents from the record.3 For these



       3
        The Lees’ reply brief include a five-page “Notice of Errata” detailing the
instances in which their opening brief should have cited to the complaint and its exhibits.
The Lees now stipulate to augmenting the record with the complaint.

                                              6
reasons, we reject the Lees’ claim that they were prejudiced by Dr. Pham’s delay in
augmenting the record. Accordingly, we grant Dr. Pham’s motion to augment the record.
                                        II. DISCUSSION
   A. Legal Framework
       The anti-SLAPP law allows a defendant to bring a “special motion to strike” a
cause of action “arising from any act of [the defendant] in furtherance of that person’s
right of petition or free speech under the United States Constitution or the California
Constitution in connection with a public issue. . . .” (§ 425.16, subd. (b)(1).) Protected
acts include, as relevant here, “(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.” (§ 425.16, subds. (e)(3) & (e)(4).) The trial court must grant the
defendant’s motion to strike a cause of action that arises from protected acts unless the
plaintiff establishes a “probability that [he or she] will prevail on the claim.” (§ 425.16,
subd. (b)(1).)
       Courts apply a two-pronged analysis when reviewing a challenge to an anti-
SLAPP motion. In the first prong, we consider whether the moving party has met the
burden of showing that the challenged cause of action arises from conduct protected by
the statute. (Martinez v. Metabolife International, Inc. (2003) 113 Cal.App.4th 181, 186.)
If the conduct is protected, we then consider whether the plaintiff has met the burden of
establishing a probability of prevailing on the claim. (Ibid.) To satisfy the second step of
this test, the plaintiff must make a prima facie showing of facts that would support a
judgment in plaintiff’s favor if proved at trial. (Monterey Plaza Hotel v. Hotel Employees
& Restaurant Employees (1999) 69 Cal.App.4th 1057, 1064.) In making its
determination, the trial court must consider the pleadings and the supporting and
opposing affidavits stating the facts on which liability is based. (Ibid.) “We do not

                                              7
weigh credibility or evaluate the weight of the evidence. Rather, we accept as true the
evidence favorable to the plaintiff and assess the defendant’s evidence only to determine
if it has defeated plaintiff’s submission as a matter of law.” (Ampex Corp. v. Cargle
(2005) 128 Cal.App.4th 1569, 1576 (Ampex).) A reviewing court applies the de novo
standard of review without deference to the trial court’s ruling. (Cabral v. Martins
(2009) 177 Cal.App.4th 471, 478.)
   B. Whether the Lees’ Statements Are Protected Under Section 425.16
       The Lees contend their statements are protected under subdivisions (e)(3) and
(e)(4) of section 425.16 because their statements were made in a public forum and
involve issues of public interest. Dr. Pham contends that the statements solely involved a
private dispute, and did not involve any issue of public interest.
       It is well established that an Internet Web site open to the public qualifies as a
“public forum” under the anti-SLAPP law. (Wong v. Tai Jing (2010)
189 Cal.App.4th 1354, 1366 (Wong); D.C. v. R.R. (2010) 182 Cal.App.4th 1190, 1226
(D.C.); Nygård, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1039; Vogel v. Felice
(2005) 127 Cal.App.4th 1006, 1015.) But not every Web site post involves a public
issue. (D.C., supra, at p. 1226.) Generally, a public issue is implicated if the protected
statement concerned: (1) a person or entity in the public eye; (2) a subject that could
affect large numbers of people beyond the direct participants; or (3) a topic of
widespread, public interest. (Ibid.)
       Protected statements may include consumer information. “[C]onsumer
information that goes beyond a particular interaction between the parties and implicates
matters of public concern that can affect many people is generally deemed to involve an
issue of public interest for purposes of the anti-SLAPP statute.” (Wong, supra, at
p. 1366.) Thus, some courts find that statements including consumer information, to the
extent they are not limited to private transactions and instead involve warnings to aid
other consumers, constitute matters of public interest under the anti-SLAPP statute.

                                              8
(Ibid.; Carver v. Bonds (2005) 135 Cal.App.4th 328, 343-344 [statements at issue served
as a warning against plaintiff’s method of self-promotion, and were provided along with
other information to assist patients in choosing doctors]; Wilbanks v. Wolk (2004)
121 Cal.App.4th 883, 898 [statements were a warning not to use plaintiffs’ services].)
       Other courts have taken a narrower view regarding what kinds of statements
constitute matters of public interest. “[T]o satisfy the public issue/issue of public interest
requirement in situations where the issue is of interest only to a limited, but definable
portion of the public, such as a private group, organization, or community, ‘the
constitutionally protected activity must, at a minimum, occur in the context of an ongoing
controversy, dispute or discussion, such that it warrants protection by a statute that
embodies the public policy of encouraging participation in matters of public
significance.’ ” (Hailstone v. Martinez (2008) 169 Cal.App.4th 728, 738; accord, World
Financial Group, Inc. v. HBW Ins. & Financial Services, Inc. (2009)
172 Cal.App.4th 1561, 1572-1573.) Courts have applied this narrower view to Web site
posts as well. (D.C., supra, 182 Cal.App.4th at pp. 1215-1216 [one student’s posted
threat to another student did not involve an issue of public interest].)
       It is not necessary in this case to resolve the issue raised with respect to consumer
reviews on public Web sites. Even assuming that the Lees’ Web site posts about
Dr. Pham constitute protected speech, we conclude (below) that the trial court’s denial of
the anti-SLAPP motion must be affirmed because Dr. Pham has met his burden of
showing that he has a probability of prevailing on his defamation claim.
   C. Probability of Prevailing on the Merits
       Dr. Pham contends that, even if the Lees have met their initial burden under the
anti-SLAPP statute, he has met his burden of showing a probability of prevailing because
the evidence shows the Lees published provably false statements about his practice, and
those statements had a natural tendency to discourage potential patients from contacting
his clinic for care. The Lees contend Dr. Pham has failed to meet his burden because:

                                              9
(1) he has failed to show the Lees made the statements at issue; (2) the statements consist
of opinion, not verifiable statements of fact; (3) he has not shown the statements are false;
(4) he is a public figure, and he failed to plead or prove malice; (5) he failed to identify
the allegedly defamatory statements with specificity; and (6) he failed to demand a
retraction under Civil Code section 48a. We find these arguments without merit and
conclude that Dr. Pham has met his burden of showing a probability of prevailing on the
claims in his lawsuit.
   1. The Record Supports an Inference That the Lees Made the Statements at Issue
       The Lees contend Dr. Pham failed to show they made the Internet posts in
question. We disagree. Dr. Pham’s complaint and the declaration of his counsel
included printouts of negative reviews showing they were made by persons with the same
first names and last initials of the Lees. The Lees, in their declarations, do not deny they
made the posts. To the contrary, they both submitted declarations making allegations
identical in substance to the assertions made in the posts. Furthermore, the Lees’ own
declarations state that Young Lee visited Dr. Pham’s clinic on March 27, 2012, at which
time he purchased glasses from Dr. Pham for $199. The Internet post by “Jenny L.”
appeared on March 29, 2012, and Jenny’s email exchange with the Better Business
Bureau occurred the day after the negative review. This evidence supports the inference
that the Lees made the allegedly defamatory posts.
   2. The Statements Consist of Objectively Verifiable Fact
       The Lees contend their statements are not actionable as they express opinions, not
objectively verifiable statements of fact. We disagree. Jenny’s statement, in addition to
alleging “fraud” generally, also set forth specific facts underlying the alleged fraud. She
claimed specifically that Dr. Pham told her he was ordering “special glasses” for $200,
and that he instead gave her commonly available drugstore glasses. She further claimed
that another patient complained of the “exact same problem.” These are objectively
verifiable statements of fact, not mere opinions. Similarly, Alvin’s statement expressed

                                              10
more than the mere opinion that Dr. Pham was overbooking patients. He specifically
described details of the overbooking, the amount of time he had to wait (2.5 hours), the
fact that it had happened on multiple occasions, and the effect of the overbooking on
other patients in the waiting room. Again, these claims constitute objectively verifiable
facts.
   3. Dr. Pham Has Shown He Can Prove the Statements Are False
         The Lees argue that even if their statements are factual in nature, Dr. Pham has
failed to show they are false. Again, we disagree. As to Jenny’s statement that Dr. Pham
sold her common drugstore glasses for $199, the Lees’ own declarations imply the
statement is false by stating that Dr. Pham sold the glasses to Young, not Jenny. The
Lees argue that it makes no difference whether Dr. Pham sold the glasses to Jenny or her
father. For this proposition, they rely on Masson v. New Yorker Magazine, Inc. (1991)
501 U.S. 496, 517 (“the statement is not considered false unless it ‘would have a different
effect on the mind of the reader from that which the pleaded truth would have
produced’ ”). But the “effect on the mind of the reader” resulting from Jenny’s untrue
statement is substantially different from the admitted truth because readers are more
likely to credit a firsthand account of a negative experience. Furthermore, Dr. Pham’s
declaration denied that he charged Young $199 for the glasses. Similarly, as to Alvin’s
accusation of overbooking, Dr. Pham submitted a declaration specifically denying the
allegation. Because we do not judge the credibility of disputed factual claims in
reviewing an anti-SLAPP motion, we must assume the fact-finder would credit Dr.
Pham’s counterclaims. (Ampex, supra, 128 Cal.App.4th at p. 1576.) On this record,
Dr. Pham has established a prima facie case that the Lees’ statements were false and
defamatory.
   4. Dr. Pham is Not a Public Figure Required to Show Malice
         The Lees claim Dr. Pham is a public figure and that he failed to plead and prove
malice. To prevail in an action for defamation, a plaintiff who is a public figure must

                                              11
show the allegedly defamatory statements were made with knowledge of falsity or
reckless disregard of the truth. (Ampex, supra, 128 Cal.App.4th at p. 1569 [citing New
York Times Co. v. Sullivan (1964) 376 U.S. 254, 279-280].) “The characterization of
‘public figure’ falls into two categories: the all-purpose public figure, and the limited
purpose or ‘vortex’ public figure. The all-purpose public figure is one who has achieved
such pervasive fame or notoriety that he or she becomes a public figure for all purposes
and contexts. The limited purpose public figure is someone who ‘voluntarily injects him
or herself or is drawn into a specific public controversy, thereby becoming a public figure
on a limited range of issues.’ ” (Ampex, supra, at p. 1577.) For the latter category, “there
must be a public controversy, which means the issue was debated publicly and had
foreseeable and substantial ramifications for nonparticipants. Second, the plaintiff must
have undertaken some voluntary act through which he or she sought to influence
resolution of the public issue. In this regard it is sufficient that the plaintiff attempts to
thrust him or herself into the public eye. And finally, the alleged defamation must be
germane to the plaintiff’s participation in the controversy.” (Ibid.)
       The Lees do not claim that Dr. Pham is so famous or notorious that he qualifies as
an all-purpose public figure. Rather, the Lees argue that Dr. Pham is a limited purpose
public figure in connection with his ophthalmology practice because of numerous public
statements and appearances he has made to promote his practice. But it is not enough
that a plaintiff has made public statements for the purpose of self-promotion or
advertisement. (Vegod Corp. v. American Broadcasting Companies, Inc. (1979)
25 Cal.3d 763, 770.) A person must inject himself or herself into a “specific public
controversy” to be a vortex public figure. (Ampex, supra, 128 Cal.App.4th at p. 1577.)
The Lees present evidence showing Dr. Pham has made numerous public statements in
connection with his business and the practice of ophthalmology in general, but the Lees
do not identify any specific public controversy into which he has injected himself. (Cf.
Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 25 [plastic surgeon became vortex public

                                               12
figure by injecting himself into public debate over the merits of plastic surgery].) We
conclude that Dr. Pham is not a public figure, and that he was therefore not required to
plead or prove malice.
   5. The Complaint Identifies Defamatory Statements With Sufficient Specificity
       The Lees also contend Dr. Pham’s complaint failed to identify specifically all of
the allegedly defamatory statements made by the Lees. “The general rule is that the
words constituting an alleged libel must be specifically identified, if not pleaded
verbatim, in the complaint.” (Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1612, fn. 5.)
Dr. Pham’s complaint attached the negative reviews posted by the Lees and specifically
identified them as the allegedly defamatory statements. The complaint therefore meets
the level of specificity required for Dr. Pham’s claim.
   6. Civil Code Section 48a Does Not Apply
       Finally, the Lees contend Dr. Pham’s action must be stricken because he failed to
demand a retraction as required under Civil Code section 48a. That statute provides, in
relevant part: “In any action for damages for the publication of a libel in a newspaper, or
of a slander by radio broadcast, plaintiff shall recover no more than special damages
unless a correction be demanded and be not published or broadcast, as hereinafter
provided.” The language of this provision expressly limits its operation to libel published
in newspapers or slander by radio broadcast. None of the Lees’ statements fall into these
categories. Moreover, the statute provides no grounds for a motion to strike; it merely
limits damages. We find this argument without merit.
   7. Conclusion
       For the reasons above, we conclude Dr. Pham has met his burden of showing a
probability that he can prevail on the merits. Accordingly, we conclude the trial court did
not err in denying the Lees’ special motion to strike under section 425.16.
                                     III.   DISPOSITION
       The judgment is affirmed.

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                      _______________________________
                      Márquez, J.




WE CONCUR:




____________________________________________
 Bamattre-Manoukian, Acting P. J.




______________________________
 Grover, J.
