Filed 8/9/22 Premier Brain & Spine Institue v. Cudia 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
PREMIER BRAIN & SPINE H048332
INSTITUTE, INC. et al., (Santa Clara County
Super. Ct. No. 19-CV-351955)
Plaintiffs and Respondents,
v.
JILL CUDIA,
Defendant and Appellant.
Defendant Jill Cudia posted negative reviews on two websites about a spine
surgery and post-surgery care by plaintiffs Premier Brain & Spine Institute, Inc., and
Edward Rustamzadeh, M.D. Plaintiffs sued defendant for libel and false light invasion of
privacy. Defendant appeals the trial court’s denial of her special motion to strike the
complaint as a strategic lawsuit against public participation (SLAPP). (Code Civ. Proc.,
§ 425.16.) Finding no prejudicial error, we will affirm the order denying the motion.
I. TRIAL COURT PROCEEDINGS
According to plaintiffs’ complaint, in July 2019 defendant posted two reviews on
the Yelp consumer review website that contained false statements about them. Copies of
the reviews as they appeared on Yelp were attached to the complaint. The later of the
reviews is as follows (with italics indicating portions alleged to be false): “Edward
Rustamzdeh [sic] neglects his patients as soon as he is done operating. He is non
responsive, abusive, condescending and has zero bed side manner. When I was one
month post surgery (an S1 to L5 fusion and decompression of the nerves), I began having
sharp shooting pain down both my legs and in my lower back. It obviously scared me to
death, and I called his office immediately. His medical assistant, Nicole, diagnosed me
over the phone telling me I had sciatica and to see my primary care physician. I was
shocked and said I wanted to see the doctor. She said, he didn’t want to see me. I called
every day for 10 business days until he would see me. When he did, he sat in his chair
leaned back and told me he had done everything perfectly in surgery and maybe I should
go on Cymbalta. I left there devastated. So, I dealt with the pain until my 3 month
follow up and came with the xray CD in hand. He then refused to see me unless I paid
my $1,180.39 current bill (yes I just received the bill the Thursday before (6-28-19) and
had my 3 month follow up on July 2nd, 2019[)]. I still have not had my follow up care
and am not [sic] having to look for another doctor to hopefully help me. The nerve pain
is worse not better. His website says he treats sciatica but he only operates and then
wants nothing to do with a patients [sic] aftercare. Neglect is the only word to describe
his treatment. Do not use this surgeon.” (Errors in original.) Defendant also posted a
review with identical language to a different website, www.ratemds.com.
The earlier Yelp review is much lengthier, and contains similar subject matter.
Plaintiffs allege the following italicized statements from that review are false (we include
some unchallenged portions for context): “He only wants to operate, and has no bedside
manner, does not treat pain (especially post surgery) and the words that describe[] his
overall care is neglect. ... This was for an S1 to L5 fusion (27 staples, an 8” incision
down my spine, 3” incision on my abdomen) and decompression of the nerves, and he
has refused post surgical treatment. The best word to describe him is ... a butcher.”
Later in that review, defendant stated: “Your care has been nothing short of neglectful. I
can only assume that you know you rushed me into surgery, without doing a thorough
analysis, and you know that you failed as a result. I don’t believe you want to face the
fact that you made me worse, not better, even though you swore on my first unpaid office
visit that you would indeed fix me. ... You only want to get people on the operating table,
2
and want nothing to do with after care, or any type of treatment, as referenced/advertised
on your website. ... Based on your actions and your treatment of me, you must actually
truly think you are ‘God’.”
Plaintiffs sued defendant the same month, asserting two causes of action for libel
(one per plaintiff) and one cause of action for invading Rustamzadeh’s privacy by
portraying him in a false light. Defendant moved to strike the complaint under the anti-
SLAPP statute. As part of their opposition, plaintiffs filed declarations by several
individuals including Rustamzadeh and his personal assistant, Nicole Saito, to
demonstrate the falsity of certain statements in the posted reviews. (We describe the
declarations in greater detail in Part II.B.2.)
The trial court denied defendant’s anti-SLAPP motion by written order. The court
questioned whether the reviews were sufficiently connected with an issue of public
interest, but concluded defendant had met her burden on that issue. The court went on to
conclude that plaintiffs had demonstrated a probability of prevailing on the merits
because the reviews included statements of fact that could be proven false, and plaintiffs’
declarations (particularly those of Rustamzadeh and Saito) provided prima facie evidence
of falsity.
II. DISCUSSION
The anti-SLAPP statute is “designed to protect defendants from meritless lawsuits
that might chill the exercise of their rights to speak and petition on matters of public
concern.” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 883–884.) A
defendant may file a special motion under the statute to strike claims “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.” (Code Civ. Proc., § 425.16, subd. (b)(1); unspecified statutory references are to
this section.) Courts evaluate anti-SLAPP motions in a two-step process. First, the
3
1
defendant has the burden to show the challenged claims arise from protected activity. If
the defendant meets that burden, in the second step the plaintiff must show a likelihood of
prevailing on the merits. We review de novo a trial court’s decision on an anti-SLAPP
motion. (Wilson, at p. 884.)
A. STEP ONE: THE REVIEWS DID NOT ADDRESS AN ISSUE OF PUBLIC INTEREST
Defendant argues the reviews are protected activity as “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.” (§ 425.16, subd. (e)(3).) Plaintiffs acknowledge the
reviews were posted to public forums, but contend they are not protected activity because
they were not made in connection with an issue of public interest.
“Evaluating what qualifies as an issue of ‘public interest’ inherently requires
consideration of the public/private distinction, a notoriously malleable stand ard.”
(Woodhill Ventures, LLC v. Yang (2021) 68 Cal.App.5th 624, 631 (Woodhill).) “[T]here
should be some degree of closeness between the challenged statements and the asserted
public interest.” (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132.) “ ‘[A] matter
of concern to the speaker and a relatively small, specific audience is not a matter of
public interest,’ ” and a “ ‘person cannot turn otherwise private information into a matter
of public interest simply by communicating it to a large number of people.’ ” (Rand
Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 621 (Rand).) Courts have
identified three subcategories of statements that involve issues of public interest:
1
The four categories of protected activity are: “(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.” (§ 425.16, subd. (e).)
4
statements about a person or entity in the public eye; statements that could directly affect
a large number of people beyond the direct participants; and statements about a topic of
widespread public interest. (Ibid.)
Woodhill is instructive, and we invited supplemental briefing about its
applicability here. That case involved a dispute between a parent and a baker over a
custom “ ‘modern Mad Science Birthday Party’ ” theme cake that contained edible pill-
shaped decorations that the parent thought looked too much like real medication.
(Woodhill, supra, 68 Cal.App.5th at pp. 626–627.) The parent posted about the dispute
on social media and his podcast, complaining that the baker “ ‘put RX prescription
pills’ ” on the cake and refused to make a new one. (Id. at p. 629.) The baker reportedly
received threats of violence from the parent’s social media followers. The baker sued the
parent for libel, and the parent moved to strike the complaint. (Id. at pp. 628–630.) The
Woodhill court concluded the parent had not demonstrated his statements related to a
matter of public interest. (Id. at p. 632.) Rejecting the parent’s argument that his
statements “involve[d] an issue of public interest because they were about the dangers of
‘candy confusion,’ or children mistakenly eating pills they believe are candy,” the
Woodhill court emphasized that the parent’s statements “did not discuss the danger of
children confusing medications for candy” and did not seek public discussion of
anything. (Ibid.) The court also rejected the parent’s argument that his social media
posts provided consumer protection information. (Id. at p. 634.) After reviewing
consumer protection anti-SLAPP cases, the court reasoned that those authorities extend
protection “only when the ‘consumer information’ goes beyond recounting a one-time
dispute between a buyer and a seller.” (Ibid.) It found the parent’s statements related to
a single transaction with the baker and were not part of a larger discussion. (Id. at
p. 636.)
Similarly here, defendant’s online reviews were limited to her interactions with
plaintiffs relating to her spinal surgery and post-surgical treatment. The statements in her
5
reviews did not invite or promote public discussion about any broader issue of public
interest. Defendant simply left negative reviews after receiving what she believed was
neglectful treatment. Indeed, in her discussion of the merits of plaintiffs’ claims (in step
two of the anti-SLAPP analysis), defendant herself states the comments “never go
beyond her subjective judgment and her experience” with plaintiffs. Because defendant’s
public forum statements were not made in connection with an issue of public interest, her
statements were not protected activity under the anti-SLAPP statute.
Defendant’s arguments to the contrary are unpersuasive. She contends courts have
“repeatedly found that the competence and qualifications of medical professionals is of
public interest and public statements about their services are protected under the [a]nti-
SLAPP statute.” But the cases defendant cites for that proposition involved speech about
medical professionals’ pattern of practice relating to multiple patients, significantly
broadening the topic. (See Yang v. Tenet Healthcare Inc. (2020) 48 Cal.App.5th 939,
943–944 [defendant hospital told providers and members of the public that surgeon
rendered care below applicable standards and was under investigation for performing
surgeries she was not privileged to perform]; Healthsmart Pacific, Inc. v. Kabateck
(2016) 7 Cal.App.5th 416, 422–425 [defendant attorneys told the press about the lawsuit
they were pursuing against a doctor and his spinal surgery hospital alleging use of
counterfeit medical hardware in thousands of procedures].)
Defendant contends her statements are protected because they were made on a
consumer review website. But the nature of the forum does not automatically confer
public interest. Wong v. Jing (2010) 189 Cal.App.4th 1354 (Wong), similarly involved a
Yelp review by the parents of a child who was treated by a dentist. (Id. at p. 1361.) The
review stated the type of anesthetic used by the dentist “ ‘harms a kid’s nervous system’ ”
according to the parents’ new dentist, and that the type of filling used by the dentist “ ‘has
a small trace of mercury in it.’ ” (Ibid.) In finding that the review was made in
connection with an issue of public interest, the court reasoned “the posting went beyond
6
parochial issues concerning a private dispute about particular dental appointments” and
“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.) By contrast here,
defendant’s reviews did not mention or invite discussion (implicitly or otherwise) on any
broader issue of public interest.
Defendant cites Carver v. Bonds (2005) 135 Cal.App.4th 328, where a podiatrist
sued the publisher of the San Francisco Chronicle and professional athletes for
defamation after the newspaper published an article suggesting the podiatrist inflated his
connections to famous athletes to obtain more business. (Id. at pp. 332–334.) The court
found the article was protected activity because it “warned readers not to rely on doctors’
ostensible experience treating professional athletes, and told what it described as ‘a
cautionary tale’ of [the plaintiff podiatrist] exaggerating that experience to market his
practice.” (Id. at p. 344.) Here again, we do not view defendant’s comments as touching
on a broader topic of widespread public interest.
Defendant argues her reviews were “in the public interest” because they made
statements about plaintiffs’ billing practices, advertising, post-surgery care, the outcome
of her surgery, and communication regarding treatment. But defendant fails to show how
statements about her individual dispute with plaintiffs would directly affect a large
number of people beyond the direct participants. (Rand, supra, 6 Cal.5th at p. 621.)
We conclude defendant’s statements were not protected activity because they were
not made in connection with an issue of public interest.
B. STEP TWO: PLAINTIFFS HAVE SHOWN A PROBABILITY OF PREVAILING
Even assuming defendant’s reviews constituted protected activity, we find no error
in the trial court’s order. The second step of the anti-SLAPP analysis shifts the burden to
plaintiffs to make a prima facie showing of likely succeeding on the merits. At the
second step, we do not weigh evidence or resolve conflicting factual claims. (Baral v.
7
Schnitt (2016) 1 Cal.5th 376, 384 (Baral).) We accept a plaintiff’s evidence as true and
consider a defendant’s showing only to determine if it defeats the claim as a matter of
law. Our inquiry is “limited to whether the plaintiff has stated a legally sufficient claim
and made a prima facie factual showing sufficient to sustain a favorable judgment.”
(Id. at pp. 384–385.)
“The elements of a defamation claim are (1) a publication that is (2) false,
(3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes
special damage.” (Wong, supra, 189 Cal.App.4th at p. 1369.) “Libel is a false and
unprivileged publication by writing, printing, picture, effigy, or other fixed representation
to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which
causes him to be shunned or avoided, or which has a tendency to injure him in his
occupation.” (Civ. Code, § 45.) As a statement must contain a provable falsehood to be
libelous, “ ‘courts distinguish between statements of fact and statements of opinion for
purposes of defamation liability.’ ” (Wong, at p. 1370.) The question is “ ‘ “whether a
reasonable fact finder could conclude the published statement declares or implies a
provably false assertion of fact.” ’ ” (Ibid.) We review both the language of the
statement and the context in which it was made to determine whether in the totality of the
circumstances a challenged statement is actionable fact or nonactionable opinion. (Ibid.)
Defendant does not dispute she published the reviews online, nor does she contend
any of her statements were privileged. And publishing false reviews about doctor’s (and
office staff’s) professional abilities has a natural tendency to injure. The focus is
therefore on whether the reviews contained provably false assertions of fact, and whether
plaintiffs made a prima facie showing that any such assertions were false.
1. The Reviews Contain Provably False Factual Assertions
Defendant argues that her reviews contained nothing but her “personal opinion of
the treatment she received and that her posting [was] an emotional response as opposed to
dispassionate assessment of [plaintiffs’] care.” She contends her comments “never go
8
beyond her subjective judgment and her experience” with plaintiffs. We agree that
certain statements—such as that Rustamzadeh is a butcher or that he believes he is God —
are hyperbolic opinion rather than provably false factual assertions. But defendant’s
reviews also alleged specific facts about plaintiffs that can be proven false. We focus on
three statements in defendant’s reviews that contain provably false factual assertions:
(1) her contention that personal assistant Saito “diagnosed [defendant] over the phone
telling [her she] had sciatica and to see [defendant’s] primary care physician”; (2) her
contention that Rustamzadeh “swore on [her] first unpaid office visit that [he] would
indeed fix [her]”; and (3) her contention that Rustamzadeh “rushed [her] into surgery,
without doing a thorough analysis, and [he knew that he] failed as a result.” As each of
those statements involve situations where defendant was present, plaintiffs can prove
actual malice—i.e., that defendant knew her statement was untrue or that she acted with
reckless disregard for its truth—by proving that the statements were false. (ZL
Technologies, Inc. v. Does 1-7 (2017) 13 Cal.App.5th 603, 631.)
Defendant contends “courts have consistently recognized that online review sites
and message boards, like the ones [defendant] posted on, are forums that readers
understand and expect posters to state strongly worded opinions that play fast and loose
with facts.” (Citing Summit Bank v. Rogers (2012) 206 Cal.App.4th 669, 696.) But the
website at issue in that case was a “section of the Craigslist Web site entitled ‘Rants and
Raves’ ” (id. at p. 696), whereas here the reviews were posted on the Yelp consumer
review site. Seen in context, defendant’s reviews contain provably false factual
assertions.
Regarding the statement in the review that personal assistant Saito diagnosed
defendant over the phone with sciatica, defendant argues that plaintiffs cannot prevail on
a defamation claim about that statement because it defames only Saito and not
Rustamzadeh or Premier Brain & Spine Institute, Inc. But a false statement suggesting
that a corporation’s employee and a doctor’s personal assistant engaged in the unlicensed
9
practice of medicine undoubtedly has a tendency to injure both the corporation and the
doctor. The statement is “ ‘of and concerning’ ” both plaintiffs, and the argument to the
contrary is without merit. (Issa v. Applegate (2019) 31 Cal.App.5th 689, 702 (Issa).)
Defendant argues, without citation to authority, that even if certain statements are
provably false factual assertions, “the remainder of [defendant’s] post is non-actionable
and should be stricken from the Complaint.” But context is important in deciding the
merits of a defamation case (see Wong, supra, 189 Cal.App.4th at p. 1370).
2. Plaintiffs Met Their Burden to Show the Factual Assertions Were False
Plaintiffs submitted declarations of several individuals as part of their opposition
to the anti-SLAPP motion, including Rustamzadeh, personal assistant Saito, a doctor who
assisted Rustamzadeh with defendant’s surgery, and two former patients of Rustamzadeh.
We agree with the trial court that the only declarations relevant to demonstrating the
falsity of defendant’s statements are those of Rustamzadeh and personal assistant Saito
because they were the only individuals with personal knowledge of the conduct discussed
in the online reviews.
The first challenged statement is that personal assistant Saito “diagnosed
[defendant] over the phone telling [her she] had sciatica and to see [defendant’s] primary
care physician.” Saito’s declaration unequivocally denies doing so: “I never diagnosed
[defendant] over the phone. I never told [defendant] she had sciatica.” Because we must
accept plaintiffs’ evidence as true at this step and nothing in defendant’s showing defeats
the claim as a matter of law (Baral, supra, 1 Cal.5th at pp. 384–385), plaintiffs have
demonstrated a probability of prevailing as to this statement. Defendant argues the
“thrust” of the reviews was that plaintiffs were refusing to treat her pain and that the
“gist” of the reviews is true even if the “parties dispute the details of the statement by
Ms. Saito.” (Citing Issa, supra, 31 Cal.App.5th at p. 708.) But defendant’s statement
about what Saito allegedly told her is more specific than her general statements about
10
plaintiffs’ care. The specific comment about Saito ultimately asserts that plaintiffs
allowed an employee to engage in the unlicensed practice of medicine.
The second challenged statement is that Rustamzadeh “swore on [defendant’s]
first unpaid office visit that [he] would indeed fix [her].” Rustamzadeh’s declaration
unequivocally denies that he made any such promise. Rustamzadeh declares: “I never
swore that I would fix [defendant], but I instead explained to her the risk benefit analysis
of performing surgery at her initial appointment.” Accepting plaintiffs’ evidence as true,
and finding nothing in defendant’s showing which disproves it as a matter of law,
plaintiffs have demonstrated a probability of prevailing as to this statement which would
have a natural tendency to harm a doctor’s reputation.
Similarly harmful is the third challenged statement that Rustamzadeh “rushed
[defendant] into surgery, without doing a thorough analysis, and [he knew] that [he]
failed as a result.” Rustamzadeh declared that he “performed a thorough analysis of
[defendant’s] medical condition before making the determination to perform surgery on
her spine.” The declaration continues: “She had multiple prior failed back surgeries, and
had daily ongoing back pain, nerve pain down her legs into her feet, numbness, tingling,
trouble sleeping on her sides, and was tender to the touch on both legs. After analyzing
her condition, I recommended surgery and went over the risks and benefits with her.”
Contrary to defendant’s argument that Rustamzadeh merely “rebut[ted] [defendant’s]
opinion with nothing but his own opinion,” the declaration (which we accept as true at
this stage of the proceedings) demonstrates that Rustamzadeh gathered information from
defendant about prior surgeries and current symptoms, and he explained to her the risks
and benefits before recommending surgery.
Because plaintiffs demonstrate sufficient probability of prevailing on their
defamation causes of action, the trial court properly denied the anti-SLAPP motion as to
those causes of action. And because a false light claim coupled with a defamation claim
“stands or falls on whether it meets the same requirements as the defamation cause of
11
action” (Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1385,
fn. 13), the trial court properly denied the motion as to that cause of action as well.
III. DISPOSITION
The order denying defendant’s special motion to strike is affirmed. As prevailing
parties, plaintiffs are entitled to their costs on appeal by operation of California Rules of
Court, rule 8.278(a)(1).
12
____________________________________
Grover, J.
WE CONCUR:
____________________________
Greenwood, P. J.
____________________________
Lie, J.
H048332 - Premier Brain & Spine Institute, Inc. et al. v. Cudia