The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY November 30, 2023
2023COA114
No. 22CA1611, Tender Care v. Barnett — Torts — Defamation; Courts and Court Procedure — Action Involving Exercise of Constitutional Rights — Anti-SLAPP — Special Motion to Dismiss — Issue of Public Interest — Public Issue
In this defamation action, a division of the court of appeals
considers whether an online review of a veterinary clinic was made
in connection with an issue of public interest such that it is subject
to the protections of Colorado’s anti-SLAPP statute, § 13-20-1101,
C.R.S. 2023. Recognizing that a private dispute concerning the
quality of veterinary services may implicate a public interest, the
division determines that (1) there must be some nexus between the
challenged statements and the issue of public interest; (2) labelling
speech a “warning” does not automatically warrant protection under the anti-SLAPP statute; and (3) such protection is not
warranted where protected statements are merely incidental to
unprotected conduct.
Examining the entire context of the statements made here —
including the speaker, audience, purpose, and content — the
division concludes that statements made primarily for the purpose
of airing a private dispute, and that are merely incidental to any
protected conduct, are not protected by the anti-SLAPP statute.
Consequently, the division affirms the district court’s decision
denying a special motion to dismiss the action. COLORADO COURT OF APPEALS 2023COA114
Court of Appeals No. 22CA1611 El Paso County District Court No. 22CV30676 Honorable David Prince, Judge
Tender Care Veterinary Center, Inc.,
Plaintiff Counterclaim Defendant-Appellee,
v.
Jennifer Lind-Barnett and Julie Davis,
Defendants Counterclaimants-Appellants.
ORDER AFFIRMED
Division I Opinion by JUDGE DAILEY Dunn and Harris, JJ., concur
Announced November 30, 2023
Relevant Law, Tanner W. Havens, Colorado Springs, Colorado, for Plaintiff Counterclaim Defendant-Appellee
Kane Law Firm, P.C., Mark H. Kane, Colorado Springs, Colorado; Law Office of Steven D. Zansberg, LLC, Steven D. Zansberg, Denver, Colorado, for Defendants Counterclaimants-Appellants ¶1 Defendants, Jennifer Lind-Barnett and Julie Davis, filed a
special motion to dismiss defamation claims brought by plaintiff,
Tender Care Veterinary Center, Inc. (Tender Care), pursuant to
Colorado’s anti-SLAPP statute, section 13-20-1101, C.R.S. 2023.
The district court denied their motion, and they now appeal. We
affirm.
I. Background
¶2 According to Tender Care’s complaint, in January 2022, Lind-
Barnett brought her puppy, Pinkerbell, to Tender Care for
emergency veterinary services; a vet examined the puppy and
released her back to Lind-Barnett’s care. When the puppy did not
appear better, Lind-Barnett administered her own treatment to the
puppy at home. The next morning, she brought the puppy to a
different vet clinic, where the dog was diagnosed with pneumonia
and successfully treated. Several days later, Lind-Barnett
contacted Tender Care to inform it that it had improperly treated
her puppy. Tender Care initiated a review of the puppy’s treatment
and, after determining that the puppy had received the requisite
standard of care, refused Lind-Barnett’s request for a refund.
1 ¶3 In March 2022, Davis took her dog, Spicy, to Tender Care for
ataxia, or difficulty walking and balancing. After an examination
and bloodwork, Tender Care diagnosed the dog with a resolved
seizure. Davis took her dog home, and when the dog continued to
have symptoms overnight, Davis brought her to a different vet
clinic, where the dog was diagnosed with vestibular disease and
treated.
¶4 In February and March 2022 — after Tender Care declined
Lind-Barnett’s refund request — Lind-Barnett posted six online
reviews about her experience with Tender Care on her personal
Facebook page, Tender Care’s Facebook page, and four different
community-based Facebook pages.1
¶5 In March 2022, Davis responded to several of Lind-Barnett’s
posts with similar posts about the adequacy of care her pet received
at Tender Care and Tender Care’s business practices.
1 Tender Care’s practice is in Falcon, Colorado. Lind-Barnett posted her comments on the Black Forest Community Facebook Page; the Falcon, Peyton, Calhan, Black Forest and Surrounding Areas Community Facebook Page; the Calhan, CO and Surrounding Areas Community Facebook Page; and the Neighborhood Network of Black Forest and Surrounding Areas Community Facebook Page.
2 ¶6 In their posts, defendants asserted, among other things, that
Tender Care was guilty of professional “malpractice”; that it
employs “incompetent,” “inept,” and “less than adequate” doctors
and staff who are “ignoran[t]” and “dishonest,” “lack training[ and]
misdiagnose,” and repeatedly commit “malpractice”; that Tender
Care has numerous “complaints” filed against it “with the labor
board”; that Tender Care allowed and encouraged “covid positive
employees to come into work”; that “dozens of others” have
“post[ed]” that the Tender Care owner’s “elderly father,” a former
lawyer, was used “to threaten people”; that Tender Care isn’t
“actually an emergency clinic” but “the biggest scam to ever walk
into our town”; that Tender Care used “lies” and “intimidation,” and
“harassed,” “threaten[ed],” and “bull[ied]” people; that Tender Care
“refuse[d] to take responsibility for anything — especially their own
ineptness”; and that Tender Care “blame[d] [its] client for their
animal’s illness just because they posted a bad review.”
¶7 After defendants refused to remove their posts, Tender Care
instituted the present action for defamation per se against each
defendant, based on 104 of Lind-Barnett’s statements and 10 of
Davis’s statements. Defendants responded, filing a special motion
3 to dismiss under Colorado’s anti-SLAPP statute. After reviewing the
parties’ briefs and accompanying materials and holding a
nonevidentiary hearing, the district court denied defendants’
motion.
¶8 In its order, the court concluded that defendants had failed to
establish that their statements addressed “matters of public interest
or a public issue,” and that, consequently, the matter did not fall
within the protections of the anti-SLAPP statute:
The statements described in the parties’ submissions are a private business dispute, essentially a pair of customer complaints. The complaints were statements of alleged fact regarding the Defendants’ individual customer experiences. For one Defendant, these expanded to generalized allegations levelled at the business, qualifications, and business practices. Those statements were made on the internet in social media fora that had restricted distribution rather than fully public.
. . . [A]s in Zueger [v. Goss, 2014 COA 61], the allegations made here are of a private business dispute made on the internet. The court does not find that anything about the nature of veterinary services or their arguable location in a “small community” (in context this characterization of this community on the border of a large city is questionable) renders such matters of public interest for purposes of the [anti-SLAPP statute].
4 ¶9 In the alternative, the court determined that, even if the case
had fallen within the scope of the statute, it could not be dismissed
because Tender Care had demonstrated a reasonable likelihood of
prevailing on its claims.
¶ 10 Defendants now appeal, contending that the district court
erred by denying their special motion to dismiss.
II. Legal Principles and Standard of Review
¶ 11 The General Assembly enacted section 13-20-1101 “to address
lawsuits aimed at stifling or punishing the exercise of the First
Amendment rights to free speech and to petition the government.”
L.S.S. v. S.A.P., 2022 COA 123, ¶ 1. The statute’s purpose is to
“encourage and safeguard” the exercise of these rights “to the
maximum extent permitted by law and, at the same time, to protect
the rights of persons to file meritorious lawsuits for demonstrable
injury.” § 13-20-1101(1)(b).
¶ 12 To effectuate the balancing of these interests, the statute
provides a process for weeding out, at an early stage,
nonmeritorious lawsuits brought in response to a defendant’s
petitioning or speech activity. See Salazar v. Pub. Tr. Inst., 2022
COA 109M, ¶ 12. If a plaintiff’s claims arise from any act by a
5 defendant in furtherance of his or her right of petition or free
speech in connection with a public issue, the court must grant the
defendant’s special motion to dismiss unless it determines that the
plaintiff has shown a reasonable likelihood that he or she will
prevail on the claims. § 13-20-1101(3)(a).
¶ 13 The resolution of a special motion to dismiss involves a two-
step process. At the first step, the defendant has the burden to
show that the conduct underlying the plaintiff’s claims falls within
the statute — i.e., that the claim arises from the defendant’s
exercise of his or her right of petition or free speech. L.S.S., ¶ 21.
Under the statute, a protected act in furtherance of a person’s right
of petition or free speech includes the following:
(I) Any written or oral statement or writing made before a legislative, executive, or judicial proceeding or any other official proceeding authorized by law;
(II) 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;
(III) 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
6 (IV) Any other conduct or communication 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.
§ 13-20-1101(2)(a).
¶ 14 If the conduct does not fall within the statute’s scope, then the
special motion to dismiss must be denied. If, however, the conduct
falls within the statute’s scope, then the analysis proceeds to a
second step. At this second step, the burden shifts to the plaintiff
to establish a reasonable likelihood of prevailing on the claim.
Rosenblum v. Budd, 2023 COA 72, ¶ 24; Salazar, ¶ 21.2 If the
2 As the United States District Court for the District of Colorado
recognized, divisions of this court differ on how to apply this second step. See Coomer v. Make Your Life Epic LLC, ___ F. Supp. 3d ___, ___, 2023 WL 2390711, at *3 (D. Colo. Mar. 7, 2023).
One division, noting the similarity of the “reasonable likelihood of prevailing” standard to that used in evaluating requests for preliminary injunctive relief, would neither “accept the truth of the allegations nor make an ultimate determination of their truth,” but would simply analyze the pleadings and affidavits to determine “whether the allegations and defenses are such that it is reasonably likely that a jury would find for the plaintiff.” Salazar v. Pub. Tr. Inst., 2022 COA 109M, ¶¶ 17, 20-21.
Other divisions, looking to California case law interpreting a similarly worded anti-SLAPP statute for guidance, have described
7 plaintiff makes such a showing, the motion to dismiss must be
denied. If the plaintiff fails to make such a showing, the special
motion to dismiss must be granted.
¶ 15 We review de novo a district court’s ruling on a special motion
to dismiss. L.S.S., ¶ 19; Salazar, ¶ 21.
¶ 16 Because California’s anti-SLAPP statute, Cal. Civ. Proc. Code
§§ 425.16-.17 (West 2023), closely resembles Colorado’s statute, we
look to California case law for guidance in construing and applying
section 13-20-1101. L.S.S., ¶ 20; see also Moreau v. U.S. Olympic &
Paralympic Comm., 641 F. Supp. 3d 1122, 1129 (D. Colo. 2022)
(explaining that, because of the similarities between California’s and
the second step as involving more of a “summary judgment-like procedure” in which the court reviews the pleadings and proffered evidence, “accepts the plaintiff’s evidence as true,” and determines “whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment.” L.S.S. v. S.A.P., 2022 COA 123, ¶ 23 (quoting Baral v. Schnitt, 376 P.3d 604, 608 (Cal. 2016)); accord Anderson v. Senthilnathan, 2023 COA 88, ¶ 11; Gonzales v. Hushen, 2023 COA 87, ¶ 21; Creekside Endodontics, LLC v. Sullivan, 2022 COA 145, ¶¶ 31-33.
Because of the manner in which we resolve this appeal, we need not decide which of these approaches we would use.
8 Colorado’s respective anti-SLAPP statutes, state and federal courts
have looked to California case law in construing Colorado’s statute).
III. Analysis
¶ 17 Defendants contend that the district court erred by not
granting their special motion to dismiss Tender Care’s defamation
claims. They assert that, contrary to the district court’s ruling,
(1) their statements qualified for protection under step one of the
anti-SLAPP analysis because they addressed a “public issue” or
“issue of public interest”; and (2) Tender Care cannot, under step
two of the analysis, show a reasonable likelihood of prevailing. We
disagree with their first assertion and do not need to address their
second.
A. Step One: Protected Activity
¶ 18 Because defendants’ statements were not made in connection
with any executive, legislative, or judicial body or function, see
§ 13-20-1101(2)(a)(I)-(II), the protections of the anti-SLAPP statute
apply only if the statements were made “in connection with” a
“public issue” or “an issue of public interest,” § 13-20-
1101(2)(a)(III)-(IV). According to defendants, their statements
9 qualify as such because they were honest, online reviews of a
veterinary practice serving a small, rural community.
¶ 19 Initially, we agree that internet sites available to the public
(like Facebook) are “public forums” for anti-SLAPP purposes. See
Muddy Waters, LLC v. Superior Ct., 277 Cal. Rptr. 3d 204, 214-15
(Ct. App. 2021) (collecting California cases); see also Anderson v.
Senthilnathan, 2023 COA 88, ¶ 24 (noting that statements made on
social media and before the legislature qualified as having been
made in a public forum). But not every website posting involves a
“public issue” or an “issue of public interest.” D.C. v. R.R., 106 Cal.
Rptr. 3d 399, 426 (Ct. App. 2010); see Bikkina v. Mahadevan, 193
Cal. Rptr. 3d 499, 508 (Ct. App. 2015) (“[A] person cannot turn an
otherwise private matter into a matter of public interest simply by
communicating it to a large number of people.”); Du Charme v. Int’l
Brotherhood of Elec. Workers, 1 Cal. Rptr. 3d 501, 509 (Ct. App.
2003) (“[M]ere publication . . . on a Web site[] should not turn
otherwise private information . . . into a matter of public interest.”);
cf. Zueger, ¶ 28 (holding that a widow’s statements on the internet
about the plaintiffs’ business activity, stemming from her
contention that the plaintiffs were making and selling unauthorized
10 reproductions of her deceased husband’s artwork, did not involve a
matter of public concern).
¶ 20 There is no statutory definition of the terms “public issue” or
“issue of public interest.” In applying these terms, the district court
found useful those cases discussing “whether a matter is one of
‘public concern’” for First Amendment freedom of speech purposes.
“Generally, a matter is of public concern whenever ‘it embraces an
issue about which information is needed or is appropriate,’ or when
‘the public may reasonably be expected to have a legitimate interest
in what is being published.’” Williams v. Cont’l Airlines, Inc., 943
P.2d 10, 17 (Colo. App. 1996) (quoting Lewis v. McGraw-Hill Broad.
Co., 832 P.2d 1118, 1121 (Colo. App. 1992)).
Somewhat more specifically, a matter is of public concern when “it can be fairly considered as relating to any matter of political, social, or other concern to the community,” or when it involves “the use of names, likenesses or facts in giving information to the public for purposes of education, amusement, or enlightenment when the public may reasonably be expected to have a legitimate interest in” the subject.
McIntyre v. Jones, 194 P.3d 519, 525 (Colo. App. 2008) (first
quoting Barrett v. Univ. of Colo. Health Scis. Ctr., 851 P.2d 258, 263
11 (Colo. App. 1993); and then quoting Lewis, 832 P.2d at 1121); see
City of San Diego v. Roe, 543 U.S. 77, 83-84 (2004) (For First
Amendment purposes, a matter is of public concern when it is “a
subject of legitimate news interest; that is, a subject of general
interest and of value and concern to the public at the time of
publication.”); Zueger, ¶ 27 (“[A] matter of public concern is one that
affects a broad segment of the community or affects a community in
a manner similar to that of a governmental entity.” (quoting
McIntyre, 194 P.3d at 526)).
¶ 21 California courts interpret the terms “public issue” or “issue of
public interest” in their anti-SLAPP statute in a similar manner. “In
articulating what constitutes a matter of public interest,” they
look to certain specific 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”; and whether the activity “occur[red] in the context of an ongoing controversy, dispute or discussion,” or “affect[ed] a community in a manner similar to that of a governmental entity.”
FilmOn.com Inc. v. DoubleVerify Inc., 439 P.3d 1156, 1162 (Cal.
2019) (citations omitted); see also Woodhill Ventures, LLC v. Yang,
283 Cal. Rptr. 3d 507, 512-13 (Ct. App. 2021) (noting “three
12 categories of statements or conduct that qualify as ‘public interest’:
1. Statements or conduct that concern a person or entity in the
public eye; 2. Statements or conduct that could directly affect a
large number of persons beyond the direct participants; and
3. Statements or conduct involving a topic of recognizing
widespread interest”).
¶ 22 Here, defendants’ statements did not concern political or social
issues, public officials, people or businesses that had been the
subject of news articles, a large number of persons,3 or even a topic
of widespread public interest. But defendants maintain that their
statements nonetheless qualify for anti-SLAPP protection because
they conveyed important consumer information about a significant
“public issue” or “issue of public interest” — that is, the quality of
veterinary services in a small, rural community.
3 From the record, it appears that forty-nine people across six
websites participated in discussing Tender Care’s services and business practices. Fourteen people (besides Lind-Barnett and Davis) related having had negative firsthand experiences with Tender Care; eleven others related negative information about Tender Care they’d “heard” from others; and several others reported having had positive experiences with Tender Care. (Tender Care asserted that it, its owners, and most of its staff were blocked or restricted from participating in the discussions on these websites.)
13 ¶ 23 While not identical, this position finds some support in
California cases concluding that online postings about the quality of
medical care or the competence of medical doctors or dentists can
involve issues of public concern or interest. See, e.g., Haworth v.
Pinho, No. B313430, 2023 WL 3017282, at *1-13 (Cal. Ct. App. Apr.
20, 2023) (unpublished opinion) (posts or articles on website
concerned doctor’s competence to perform surgical services, his
professional conduct, and the financial fitness of his medical
practice, “matters about which the public, including current and
future patients, have a vital interest”); Yang v. Tenet Healthcare Inc.,
262 Cal. Rptr. 3d 429, 433-34 (Ct. App. 2020) (physician’s allegedly
deficient ethics and qualification constituted public issue);
Healthsmart Pac., Inc. v. Kabateck, 212 Cal. Rptr. 3d 589, 599 (Ct.
App. 2016) (Consumers “have an interest in being informed of
issues concerning particular doctors and health care facilities.”);
Wong v. Jing, 117 Cal. Rptr. 3d 747, 759 (Ct. App. 2010) (holding
that negative Yelp review of experience with dentist involved a
public issue where post discussed use of silver amalgam containing
mercury in treating children); Gilbert v. Sykes, 53 Cal. Rptr. 3d 752,
761 (Ct. App. 2007) (finding patient’s website concerned a matter of
14 public interest that, rather than solely attacking plaintiff doctor,
contributed toward public discussion and debate about the benefits
and risks of plastic and cosmetic surgery); see also Aristocrat Plastic
Surgery, P.C. v. Silva, 169 N.Y.S.3d 272, 276–77 (App. Div. 2022)
(posting reviews of experience with plastic surgeon “to provide
information to potential patients, including reasons not to book an
appointment with [the doctor],” was matter of public interest); cf.
Carver v. Bonds, 37 Cal. Rptr. 3d 480, 493 (Ct. App. 2005)
(newspaper article critical of medical practitioner involved an issue
of public interest because it contained consumer warning
information).
¶ 24 We perceive no reason why a different conclusion should be
reached in cases involving consumer information about veterinary
services. After all, “the welfare of animals, including pets, is an
important concern of our society.” In re Marriage of Isbell, No.
B173850, 2005 WL 1744468, at *1 (Cal. Ct. App. July 26, 2005)
(unpublished opinion). “It cannot be doubted that a special
relationship exists between humans and dogs. . . . The expression
‘a dog is a man’s best friend’ attests to the joy and closeness often
experienced between people and dogs.” State v. Anderson, 566
15 N.E.2d 1224, 1225-26 (Ohio 1991). So too with cats and other pets
— all of whom may require veterinary services to retain or maintain
their health. See Sacks v. Haslet, No. D072372, 2018 WL 4659509,
at *8-9 (Cal. Ct. App. Sept. 28, 2018) (unpublished opinion)
(whether trainer was qualified to care for animals and posed a
danger to them were issues of public interest).
¶ 25 And as it does with the practice of medicine, Colorado
promotes public health, safety, and welfare by regulating the
practice of veterinary medicine to “safeguard[] the people of this
state against incompetent, dishonest, or unprincipled
practitioners.” § 12-315-102, C.R.S. 2023. A veterinarian is “a
person who has received a doctor’s degree in veterinary medicine, or
its equivalent, from a school of veterinary medicine,” § 12-315-
104(18), C.R.S. 2023, and is subject to discipline by the State Board
of Veterinary Medicine for “[i]ncompetence, negligence, or other
malpractice in the practice of veterinary medicine,” § 12-315-
112(1)(k), C.R.S. 2023.
¶ 26 Thus, while Tender Care maintains the posts aren’t subject to
the anti-SLAPP statute because they relate to a purely private
business dispute, we note that “speech or conduct, considered in
16 light of its context, may [nonetheless] reasonably be understood to
implicate a public issue, even if it also implicates a private dispute.”
Geiser v. Kuhns, 515 P.3d 623, 633–34 (Cal. 2022).
¶ 27 But the step-one analysis does not end with the identification
of a public concern, issue, or interest to which statements could
theoretically relate. A particular type of nexus must exist between
the challenged statements and the asserted issue of public interest.
FilmOn.com, 439 P.3d at 1165.
Agile thinkers always can create some kind of link between a statement and an issue of public concern. All you need is a fondness for abstraction and a knowledge of popular culture.
This pervasive potential means there must be “some degree of closeness between the challenged statements and the asserted public interest.” A tangential relationship is not enough. There is “a need to go beyond the parochial particulars of the given parties.”
Woodhill Ventures, LLC, 283 Cal. Rptr. 3d at 513 (citations omitted).
¶ 28 “[I]t is not enough that the statement refer to a subject of
widespread public interest; the statement must in some manner
itself contribute to the public debate.” FilmOn.com, 439 P.3d at
1166 (quoting Wilbanks v. Wolk, 17 Cal. Rptr. 3d 497, 506 (Ct. App.
17 2004)). And that determination can “hardly [be] undertake[n]
without incorporating considerations of context — including
audience, speaker, and purpose.” Id.; see McIntyre, 194 P.3d at 525
(“In determining whether statements involve a matter of public
concern, we . . . analyze ‘the content, form, and context of the
statements, in conjunction with the motivation or “point” of the
statements as revealed by the whole record.’” (quoting Barrett, 851
P.2d at 263)).
¶ 29 To illustrate, in Gilbert, 53 Cal. Rptr. 3d at 756, a patient who
was unhappy with the results of her plastic surgery created a
website that, among other things, provided consumer information
and advice for those considering plastic surgery. The site also
related her negative experiences with the doctor who performed her
surgery. The doctor sued her for defamation. In granting the
patient’s motion to dismiss under California’s anti-SLAPP statute,
the court rejected the doctor’s claim that the statements did “not
contribute to the public debate because they only concern[ed] [the
patient’s] interactions with him.” Id. at 760. The court instead
concluded that “plastic surgery is a subject of widespread public
interest and discussion” and the patient’s website contributed to
18 the public debate about plastic surgery by providing information on
the “benefits and risks of plastic surgery in general.” Id. The
website did this by including not just the patient’s personal negative
experience, but also general advice, information, and resources for
those considering plastic surgery as well as a contact page for
shared experiences. Id. Thus, the court concluded the website was
a matter of public interest because it “was not limited to attacking
[the physician], but contributed to the general debate over the pros
and cons of undergoing cosmetic surgery.” Id. at 762; see also
Wong, 117 Cal. Rptr. 3d at 760 (Yelp review about a pediatric
dentist’s use of nitrous oxide and silver amalgam for fillings was a
matter of public interest because it “was not just a highly critical
opinion of [the dentist]”; it “was [also] part of a public discussion”
on the use of nitrous oxide and silver amalgam in treating children,
which is an issue of public interest).
¶ 30 Defendants argue their posts are similarly protected because
their posts (or at least a few of them) related to their claim that
Tender Care had misdiagnosed their pets. But unlike the patient’s
consumer website in Gilbert, defendants’ posts did not contribute to
any broader public discussion about pet health care or connect to
19 any broader issue of public concern — for example, veterinary
diagnostic issues, shortages in or access to veterinary care,
oversight of veterinarians, the general quality of care for animals
outside large cities, veterinarians’ lack of training for the care of
smaller dogs, or how overbreeding can cause health problems for
certain animals. See Gilbert, 53 Cal. Rptr. 3d at 761; Jackson v.
Mayweather, 217 Cal. Rptr. 3d 234, 246 (Ct. App. 2017) (“[S]imply
because a general topic is an issue of public interest, not every
statement somewhat related to that subject is also a matter of
public interest within the meaning of [the statute].”); cf. Whitelock v.
Stewart, 661 S.W.3d 583, 596 (Tex. App. 2023) (“[C]ommunications
about animal abuse can be considered of concern to the public or of
interest to the community.”).
¶ 31 Rather, read in context, the posts’ purpose was, in Lind-
Barnett’s own words, “to deal with [Tender Care] once and for all” —
that is, to exact some revenge by putting it out of business. See
Woodhill Ventures, LLC, 283 Cal. Rptr. 3d at 516 (“Courts must
scrutinize the purpose of the statements . . . .”). “But ‘an attempt to
exact a personal revenge’ by causing others to ostracize the target is
20 not a protected public interest statement.” Id. at 515 (quoting
Wilbanks, 17 Cal. Rptr. 3d at 508 n.6).
¶ 32 And even if we assume a couple of the diagnostic statements
went beyond defendants’ parochial issues concerning their pets’
disputed diagnoses and connected to some broader public
discussion, when a plaintiff pleads claims based on both protected
and unprotected conduct, anti-SLAPP protections don’t apply if “the
protected conduct is ‘merely incidental’ to the unprotected
conduct.” Comstock v. Aber, 151 Cal. Rptr. 3d 589, 601 (Ct. App.
2012) (quoting Peregrine Funding, Inc. v. Sheppard Mullin Richter
& Hampton LLP, 35 Cal. Rptr. 3d 31, 40 (Ct. App. 2005)); see
Gaynor v. Bulen, 228 Cal. Rptr. 3d 243, 257-58 (Ct. App. 2018);
accord Hylton v. Frank E. Rogozienski, Inc., 99 Cal. Rptr. 3d 805,
810 (Ct. App. 2009) (“If the core injury-producing conduct upon
which the plaintiff’s claim is premised does not rest on protected
speech or petitioning activity, collateral or incidental allusions to
protected activity will not trigger application of the anti-SLAPP
statute.”).
¶ 33 Here, the posts related to the alleged misdiagnoses are far
eclipsed by the numerous posts expressing Lind-Barnett’s personal
21 animosity toward the business. Specifically, of the thirty-seven
statements Lind-Barnett initially posted on Tender Care’s Facebook
page, only eight expressly related to information regarding
Pinkerbell’s treatment and diagnosis by Tender Care.4 Most of the
posts simply attack Tender Care and its staff. Specifically, Lind-
Barnett expressed her displeasure with the clinic personnel’s
response to her complaints (she called them bullies and liars who
tried to intimidate her) and with the Tender Care’s refusal to refund
her money and apologize to her.5 Similarly, with the exception of
4 This posting is reproduced as Appendix A to this opinion. It was reposted, in its entirety, on the community Facebook pages. And it was reposted on Lind-Barnett’s Facebook page with four additional sentences, none of which related to diagnostics or business practices. See Appendix B (Lind-Barnett’s posting on her Facebook page).
5 Lind-Barnett stated several times that what she initially wanted
was a refund from Tender Care: “I gave them a chance to make it right and instead of an apology we got false accusations and were treated cruely (sic) and with distain (sic).” “As the PRETEND ‘head vet’ clearly stated in her verbal assault on me (which we recorded) they DO NOT give money back.” “All I want is for them to make it right. My money back would be a great start. An apology would be such an amazing way to handle such mistreatment of their customers.”
22 four sentences recounting her dog’s treatment, Davis’s comments
are primarily commentary on/agreement with Lind-Barnett’s
personal attacks.
¶ 34 Lind-Barnett insists that many of her statements served the
public interest of warning others of Tender Care’s allegedly
substandard care. But in context, the purpose of her “warnings”
was simply to call others to join her crusade against Tender Care to
punish it for what she thought was an inadequate response to her
criticisms.6 Labelling a diatribe against a business as a “warning”
does not transform the statements into protected conduct under the
anti-SLAPP statute. See Woodhill Ventures, LLC, 283 Cal. Rptr. 3d
at 516 (where the purpose is simply to gather “‘ammunition for
another round,’ it is not in the public interest”) (citation omitted);
6 To that end, we note the following about the “warnings”:
In response to Lind-Barnett questioning how Tender Care could still be in business, a commentor wrote, “Hopefully they won’t be when you get done with them,” to which Lind-Barnett replied, “I[]hope so!” Lind-Barnett called other commentors to action, stating “I have a group of folks wanting to go to court and deal with this once and for all.” Lind-Barnett warned the other posters, “THEY ARE GOING TO WISH THEY HAD NEVER TRIED TO BULLY ME AND MY FAMILY.”
23 see also Jeppson v. Ley, 257 Cal. Rptr. 3d 921, 928–29 (Ct. App.
2020) (online post reigniting neighborhood feud didn’t become a
matter of public concern just because one neighbor purportedly felt
compelled to warn others of a second neighbor’s potential for gun
violence). If that were the case, any statement, no matter how
defamatory, would be protected by simply adding some generic
consumer “warning” in the statement.
¶ 35 In sum, the vast majority of Lind-Barnett’s and Davis’s
statements cannot be said to involve a “public issue” or “issue of
public interest” because they weren’t directed at “seek[ing] public
discussion of anything”; they appeared, instead, to be aimed at
“whip[ping] up a crowd for vengeful retribution.” Woodhill Ventures,
LLC, 283 Cal. Rptr. 3d at 513.
¶ 36 Focusing, as we must, “on ‘the specific nature of the speech,’
rather than on any ‘generalities that might be abstracted from it,’”
FilmOn.com, 439 P.3d at 1167 (quoting Commonwealth Energy Corp.
v. Investor Data Exch., Inc., 1 Cal. Rptr. 3d 390, 395 (Ct. App.
2003)), we conclude that the core of defendants’ conduct does not
rest on protected speech and, thus, is not protected under the anti-
SLAPP statute. See Sacks, 2018 WL 4659509, at *8-9 (Anti-SLAPP
24 protection does not apply “any time individuals have a dispute over
a particular animal merely because the subject of animal welfare is
important to many people. The public interest aspect of the anti-
SLAPP statute applies only when the specific challenged speech is
directed at the larger public issue.”).
B. Step Two: Likelihood of Prevailing
¶ 37 Because we conclude that defendants’ speech does not fall
under the protection of the anti-SLAPP statute, there is no need for
us to additionally determine whether Tender Care can prove a
reasonable likelihood of prevailing in its defamation suit.
IV. Disposition
¶ 38 The order denying the special motion to dismiss is affirmed.
JUDGE DUNN and JUDGE HARRIS concur.
25 Appendix A
These images are reproduced in their original format, with
redactions to remove other comments.
26 27 28 Appendix B
redactions to remove personal information unrelated to this action.
29 30 31