Wong V. Jing Reversed By Sixth Appellate District

NOVEMBER 9, 2010

“Wong V. Jing”

THE RECORDER

 The Sixth Appellate District reversed an order and remanded. The court held that a dentist’s declaration regarding her treatment of a young patient demonstrated a probability of success in her libel action based on a derogatory website Yelp review posted by the patient’s father; the trial court nonetheless erred in failing to grant a special motion to strike as to the patient’s mother, whose declaration showed that she had no part in posting the review.

Pediatric dentist Yvonne Wong treated the young son of Tai Jing and Jia Ma. Jing posted a negative review of Wong on the website Yelp. When Wong was unable to get the negative review removed from the site, she sued Jing, Ma, and Yelp for libel per se and intentional and negligent infliction of emotional distress.

Jing, Ma and Yelp filed a special motion to strike the complaint under the anti-SLAPP statute.

In response, Wong declared that she had advised and treated the couple’s son properly. In particular, in response to Jing’s allegation in the review that she used mercury fillings without advising Jing and Ma of the danger, Wong declared that she had provided Ma with detailed written fact sheets concerning the filling materials available and had obtained Ma’s written consent to use mercury fillings. In response to Jing’s allegation that Wong had “rushed” her treatment of the child and, to that end, had used a harmful general anesthetic, Wong declared that she had used nitrous oxide because the child was afraid of needles. Further, she declared that such use of nitrous oxide was approved by the American Dental Association. Finally, in response to Jing’s allegation that she misdiagnosed the boy by failing to discover numerous cavities, Wong declared that, at the time of the boy’s final appointment, she had recommended that the family return so that she could take further x-rays. They failed to do so.

In reply, Jing declared that he posted the review without consulting Ma and without her knowledge. Ma declared that she did not learn of the review until long after it was posted.

Before hearing on the defendants’ motion, Wong voluntarily dismissed Yelp from the lawsuit.

The trial court denied the motion to strike, finding that although the defendants had shown that Wong’s lawsuit arose from protected speech, Wong had succeeded in showing a probability of success on the merits.

The court of appeal reversed and remanded, holding that the trial court erred in part in denying the motion to strike.

The court agreed with the trial court that Wong demonstrated a probability of success on the merits with regard to her cause of action for libel. Given Wong’s evidence, a jury could reasonably find that Jing’s review falsely implied she had failed to warn and advise the family regarding filling materials, had misdiagnosed the child, and had exposed him to harm through her use of a general anesthetic, and that such implication was defamatory. Further, the defendants’ showing did not conclusively negate or preclude such findings. The trial court thus properly denied the special motion to strike the cause of action for libel.

The court reached a different conclusion, however, with regard to Wong’s causes of action for intentional and negligent infliction of emotional distress. She declared only that the Yelp posting had caused her “to lose sleep, have stomach upset and generalized anxiety.” Such an emotional reaction to being professionally criticized in a Yelp review, however unjustified or defamatory that criticism might have been, did not constitute the sort of severe emotional distress of such lasting and enduring quality that no reasonable person should be expected to endure. Wong thus failed to make a prima facie showing of probable success on her cause of action for intentional or negligent infliction of emotional distress because the evidence of her response to the posting, if believed, did not constitute “severe” or “serious” emotional distress.

Further, as to Ma, the defendants’ declarations showed that Ma had no part in the Yelp posting, and Wong did not refute this showing. Accordingly, the special motion to strike should have been granted as to Ma with regard to all three causes of action.

Finally, the court held that Yelp had the right to appeal the trial court’s ruling, despite having been dismissed from the lawsuit. Jing, Ma, and Yelp filed a joint anti-SLAPP motion. Although Wong dismissed Yelp before the hearing on the motion, Yelp remained a party to the motion because it would have been entitled to fees had the defendants prevailed. Thus, as a party to the motion, Yelp was entitled to appeal from the order denying the motion and seek reversal in order to pursue attorney fees.

FULL ARTICLE

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