Case Name:   Randal Pham v. Daniel Watts

Case No.:       1-13-CV-258390

 

Currently at issue is defendant Daniel Watts’s (“Defendant”) special motion to strike Plaintiff Randal Pham’s (“Plaintiff”) first amended complaint (the “FAC”).

 

Request for Judicial Notice

 

Plaintiff’s request for judicial notice is GRANTED given that the subject order was entered in an action from which this one arises and is relevant to Plaintiff’s counsel’s prior admonishment by this Court, as discussed below.  (See Evid. Code, § 452, subd. (d); People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [only relevant matters are subject to judicial notice].)

 

To the extent the request is granted, however, the Court does not take judicial notice of the truth of hearsay statements reflected in the order.  (See Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564 [a court may take judicial notice of the existence and content of each document in a court file, but cannot take judicial notice of the truth of hearsay statements therein].)

 

Objections to Evidence

 

Objection no. 1 is SUSTAINED on the basis of hearsay; objection nos. 4, 5, and 7 are SUSTAINED for lack of personal knowledge; objection nos. 6, 8, 10, and 13 are SUSTAINED on the basis of relevance; objection no. 11 is SUSTAINED for lack of foundation; and objection nos. 2, 3, 9, 12, and 14 are OVERRULED.

 

Oversized Memorandum

 

Defendant’s 22-page memorandum of points and authorities exceeds the page limitation for a memorandum filed in support of a special motion to strike.  (See Cal. Rules of Court, rule 3.1113, subdivision (d) [“no opening or responding memorandum may exceed 15 pages”].)  Defendant did not seek leave for a page extension as permitted by California Rules of Court, rule 3.113, subdivision (e).  Further, Defendant’s counsel previously filed an oversized memorandum in support of the special motion to strike filed by the defendants in Pham v. Lee, et al. (Super. Ct. Santa Clara County, No. 1-12-CV-228332) (hereinafter, “Pham v. Lee”) and was admonished that the Court may refuse to consider any future oversized memoranda.  (Plaintiff’s Req. for Judicial Notice, Ex. A., pp. 1-2.)

 

While the Court exercises its discretion to consider Defendant’s motion given that counsel’s previous violation of the page limitation occurred in another case, counsel is warned that any future failures to comply with the California Rules of Court may result in the Court’s refusal to consider Defendant’s papers.  (See Cal. Rules of Court, rule 3.1113, subd. (g) [“A memorandum that exceeds the page limits of these rules must be filed and considered in the same manner as a late-filed paper.”], rule 3.1300, subd. (d) [a court may, in its discretion, refuse to consider a late-filed paper].)

 

Defendant’s Motion

 

Defendant is an attorney who represented the children and grandchildren of Plaintiff’s former patients in Pham v. Lee, a prior defamation lawsuit by Plaintiff.  (Decl. of Daniel Watts ISO Mot., ¶¶ 2-3.)  While that action was pending, someone published case filings and associated commentary on the web sites at issue in this case.[1]  (Id., ¶ 10.)  The FAC alleges that the publisher was Defendant.  (See Opp. at p. 2.)

 

Defendant’s Initial Burden

 

Defendant contends that these statements concern an issue of public interest, given that they constitute consumer information and information of interest to the Vietnamese community, and the statements are protected because they were made in a public forum and in furtherance of the speaker’s constitutional right of free speech.  (Code Civ. Proc., § 425.16 (e)(3)-(4).)  Given that websites accessible to the public are public forums for purposes of the anti-SLAPP statute (Barrett v. Rosenthal (2006) 40 Cal.4th 33, 41, fn.4), Plaintiff does not dispute that the statements at issue here would be protected if they pertained to an issue of public interest, but argues that the statements instead concern a private dispute.

 

“The most commonly articulated definitions of ‘statements made in connection with a public issue’ focus on whether (1) the subject of the statement or activity precipitating the claim was a person or entity in the public eye; (2) the statement or activity precipitating the claim involved conduct that could affect large numbers of people beyond the direct participants; and (3) [] the statement or activity precipitating the claim involved a topic of widespread public interest.”  (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 898 (hereinafter, “Wilbanks”).)  However, even where these criteria are not satisfied, “[c]onsumer information … , at least when it affects a large number of persons, also generally is viewed as information concerning a matter of public interest.”  (Id.)  Consumer information provided as a “warning not to use [a plaintiff’s] services,” rather than simply as a complaint or report concerning a particular interaction with the plaintiff, concerns a matter of public interest, at least “[i]n the context of information ostensibly provided to aid consumers choosing among [service providers].”  (Id. at p. 900; Makaeff v. Trump Univ., LLC (9th Cir. 2013) 715 F.3d 254, 263 [quoting this language from Wilbanks]; see also Carver v. Bonds (2005) 135 Cal.App.4th 328; Wong v. Jing (2010) 189 Cal.App.4th 1354; Chaker v. Mateo (2012) 209 Cal.App.4th 1138 (hereinafter, “Chaker”).)

 

Here, while the alleged statements do pertain to a series of interactions between Plaintiff and a single patient, they take the form of a warning not to use Plaintiff’s services, and at least some of them were published to the consumer watchdog website “ripoffreport.com,” the same site to which the statements at issue in Chaker were published.[2]  (Watts Decl., ¶ 10.)  These statements, like those at issue in the cases cited above, were presented in the context of a more general forum for comparing service providers, and Defendant has consequently made a prima facie showing that they were in the public interest.[3]

 

Defendant’s Burden

 

With respect to his first cause of action for defamation, Plaintiff submits evidence supporting his allegations that Defendant published the statements at issue[4] (see Decl. of Ali A. Aalaei ISO Opp., Exs. B and C [WHOIS screenshots showing that “randalpham.org” and “randalpham.co” are registered to Defendant]) and the statements are false (see Decl. of Randal Pham, M.D. ISO Opp., ¶¶ 3-9 [Plaintiff does not overbook patients, Mr. Lee was over a hour late for his appointment, and Mr. Lee was charged $199 for both eyeglasses and services rendered, not eyeglasses alone]).  As urged by Plaintiff, the statements alleged concern facts and are defamatory per se.  (See Slaughter v. Friedman (1982) 32 Cal.3d 149, 154 [letters accusing dentist of charging excessive fees or performing unnecessary work were defamatory]; Albertini v. Schaefer (1979) 97 Cal.App.3d 822, 829 [statements that tend to injure a person with respect to his profession, business, or trade are slanderous per se].)

 

As to the remaining element of privilege, Defendant contends that the statements at issue are subject to section 230 of the Communications Decency Act (“CDA”), which provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”  (47 USC § 230(c)(1); see also Barrett v. Rosenthal (2006) 40 Cal.4th 33, 62 [“By declaring that no ‘user’ may be treated as a ‘publisher’ of third party content, Congress has comprehensively immunized republication by individual Internet users.”].)  Defendant contends that the web sites shown in the exhibits to the FAC merely republish court filings in Pham v. Lee.  However, the web sites also include independent commentary that makes defamatory allegations against Plaintiff.  (See FAC, Exs. A [Plaintiff is “[l]ate for appointments” and “tried to trick [a patient] into buying ‘prescription’ eyeglasses that turned out to be $10 cheapo Walmart glasses”], B [Plaintiff “is consistently late to appointments, overbooks his patients, and fraudulently charges prescription prices for over-the-counter eyeglasses”].)  In addition, Defendant would appear to be the author of the underlying filings and thus not subject to CDA immunity.

 

Finally, Defendant contends that Plaintiff is a limited purpose public figure who must establish actual malice to prove his claim for defamation.  However, here there is no evidence that the statements at issue have been “debated publicly” or that the resolution of the parties’ dispute will have “substantial ramifications for nonparticipants” as required to establish that Plaintiff is a limited purpose public figure.  (Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569, 1577.)  Further, there is no evidence that Plaintiff participated in any public controversy in a manner germane to the alleged defamation.  (See id.)  Plaintiff’s general promotion of his business does not render his business as a whole the subject of a public debate, and if Plaintiff’s filing of a lawsuit itself could satisfy this requirement, the requirement would be meaningless.

 

Consequently, Plaintiff has satisfied his burden to show a probability of success on his claim for defamation.  Defendant’s motion, which seeks to strike Plaintiff’s entire complaint, is accordingly DENIED.  The Court does not reach any argument concerning Plaintiff’s probability of success on his second through fifth causes of action given that a motion to strike these individual claims was not noticed by Defendant, and these claims are based on the same underlying conduct as the first cause of action (see M. G. v. Time Warner, Inc. (2001) 89 Cal.App.4th 623, 636-637 [where plaintiffs had met their burden to demonstrate a probability of success on their invasion of privacy claims, the court “decline[d] to consider the validity of the[ir] emotional distress claims” based on the same underlying conduct]).

 

[1] Defendant’s counsel declares that he “believe[s] the statements at issue in this case may consist entirely of pleadings and motions filed in the underlying Pham v. Lee.”  (Watts Decl., ¶ 10.)  However, the exhibits attached to the FAC self-evidently also reflect commentary on any apparent quotations from court filings.

[2] Notably, Plaintiff does not discuss Chaker in his opposition papers.  In that case, the defendant was the mother of a woman with whom the plaintiff, who operated a forensics business, had a child and became involved in a contentious paternity and child support dispute.  (Chaker, supra, 209 Cal.App.4th at pp. 1142, 1141-1142.)  The defendant posted warnings concerning the plaintiff’s general character and alleged illegal activity in his personal life to web sites including the “Ripoff Report,” and the court found that these statements were in the public interest.  (Chaker, supra, 209 Cal.App.4th at pp. 1142, 1146-1147.)

 

[3] Even to the extent that the statements published to web sites complaining of Plaintiff exclusively do not concern an issue of public interest, the “Ripoff Report” statements are equally integral to Plaintiff’s claims, and the anti-SLAPP statute consequently applies.  (See Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 672 [“The apparently unanimous conclusion of published appellate cases is that ‘where a cause of action alleges both protected and unprotected activity, the cause of action will be subject to section 425.16 unless the protected conduct is ‘merely incidental’ to the unprotected conduct.’”], internal citations omitted.)

 

[4] Contrary to Defendant’s argument, the FAC repeatedly identifies the statements shown in Exhibits A-D as those supporting Plaintiff’s claims.  (See FAC, ¶¶ 14, 15, 21.)