Court of Appeals Explores Anti-SLAPP Statute. The Colorado Court of Appeals in Creekside Endodontics, LLC v. Sullivan (2022COA145) examined Colorado’s Anti-SLAPP statute to strike down a defamation claim. The defendant was a patient at the plaintiff’s endodontics practice. Following a procedure at the plaintiff’s clinic, the defendant reported that she continued to experience pain from the procedure. The plaintiff denied that the defendant’s pain was caused by the procedure. The defendant obtained second and third opinions from other dentists about the source of her pain and problems with the procedure. The defendant then posted three one-star reviews on-line using Yelp and Google and detailing her problems with the plaintiff.
The plaintiff sued for libel per se and trade/product disparagement. The defendant moved to dismiss under Colorado’s Anti-SLAPP statute, C.R.S. § 13-20-1101(3)(a). The trial court denied the motion.
The court of appeals reversed. The court first discussed the law underlying the Anit-SLAPP statute, explaining (1) that the defendant must show that the claim arises from an act in furtherance of the defendant’s right of petition or free speech in connection with a public issue and (2) that the plaintiff must establish a reasonable likelihood of prevailing on the claim.
On the first point, the trial court found the matter concerned a public issue, and since the plaintiff failed to contest this point in its appellate briefing, the court of appeals was compelled to accept the trial court’s finding. This seems like a clear mistake by the plaintiff’s counsel because it does not appear that the defendant’s statements concerned any sort of public issue whatsoever, and merely posting a review on Google would not seem to be enough to convert a private dispute into a matter of public concern. (Indeed, the concurring opinion of Judge Yun flagged this very issue: “In my view, because of the proliferation of internet forums such as Yelp and Google, the majority’s opinion risks constitutionalizing defamation claims involving private disputes between private individuals.”.)
On the second point, the court of appeals explained that the law required a showing from the plaintiff by clear and convincing evidence of actual malice by the defendant (with “actual malice” being a necessary element where the defamatory statement involves a matter of public concern). The court provided a thorough discussion of the actual malice standard and then turned to the actual statements made by the defendant in her reviews. The court concluded that reliance on professional opinions to substantiate the statements about the quality of the dental work and source of her pain precluded a finding of actual malice. On the statements expressing grievances about the plaintiff’s response to the defendant’s complaints, the defendant provided the factual reasons for her opinions, thus bringing them within the protection of the First Amendment.
In the end, the court of appeals also awarded attorney fees to the defendant pursuant to C.R.S. § 13-20-1101(4)(a).