This comes straight from the briefing in the appeals court:
Dr. Randal Pham MD cannot show a probability of prevailing on his claim.
Once appellants established that Dr. Randal Pham MD’s single cause of action is subject to the anti-SLAPP law, the burden shifted to Dr. Randal Pham MD to establish by admissible evidence a probability of prevailing on his claims. Dr. Randal Pham MD did not meet his burden (and in fact designated no evidence at all for inclusion in the appellate record), and appellants’ special motion to strike should have been granted.
- 1. Dr. Randal Pham MD Fails to Meet His Burden of Proof.
This lawsuit is based entirely on the publication of online consumer reviews of a service and a product. Dr. Randal Pham MD alleges one purported cause of action against both appellants: defamation. 1 CT 211.
Of particular importance here is that in opposing an anti-SLAPP motion, a plaintiff must rely on the Complaint as pled and may not add allegations after the filing of a special motion to strike. Navellier v. Sletten, supra, 29 Cal.4th at p. 88 (plaintiff must state and substantiate “a legally sufficient claim”); Gallant v. City of Carson (2005) 128 Cal.App.4th 705, 710 (in a special motion to strike, “the pleadings frame the issues to be decided”); Salma v. Capon (2008) 161 Cal.App.4th 1275, 1293-94 (a party has no right to amend a pleading prior to adjudication of a pending anti-SLAPP motion). Dr. Randal Pham MD did not plead in his complaint which of the appellants made which of the purported defamatory statements; instead, Dr. Randal Pham MD attempted to name the authors for the first time in his opposition to the anti-SLAPP motion, though he offered no evidence (and offers none now) to show that the appellants indeed made the statements at issue. The statements themselves are non-actionable opinion or at least substantially true. Dr. Randal Pham MD did not establish a probability of prevailing on his cause of action against either of the appellants.
2. The alleged statements consist of non-actionable opinion.
However, even if Dr. Randal Pham MD could amend his Complaint in this regard, any statement that he is a “crook,” that a “free clinic moves faster than this place,” or that he “overbooks his patients” is non-actionable opinion or hyperbole. Moyer v. Amador Valley J. Union High School Dist., supra, 225 Cal.App.3d at p. 724; Ferlauto v. Hamsher, 74 Cal.App.4th 1394, 1401 (1999).
Allegedly defamatory statements fall into one of two categories. A statement is either (1) an objectively verifiable false factual assertion, or (2) an assertion of opinion, in which case it cannot form the basis for a libel suit, because statements of opinion are constitutionally protected. Paterno, 163 Cal. App. 4th at 1356; accord, e.g., Campanelli v. Regents of Univ. of Calif., 44 Cal. App. 4th 572, 578 (1996) (affirming dismissal of libel lawsuit over statements critical of coach’s performance because “[e]ven if they are objectively unjustified or made in bad faith, … statements of opinion rather than fact cannot form the basis for a libel action.”); Restatement of Torts (2d), Sec. 566(b) & (c) (“A simple expression of opinion … is not itself sufficient for an action of defamation, no matter how unjustified or unreasonable the opinion may be or how derogatory it is.”). In determining whether a particular statement is one of fact or opinion, it cannot be viewed in isolation, but must instead be considered in the context of the larger work – in this case, the entire body of reviews that make up the websites’ content. See, e.g., Baker, 42 Cal. 3d at 260-61; Gilbert v. Sykes, 147 Cal. App. 4th 13, 30 (2007). As California’s appellate courts have instructed, context can be a “major determinant of whether an alleged defamatory statement constitutes fact or opinion.” Campanelli, 44 Cal. App. 4th 572, 579 (1996). Thus, “what constitutes a statement of fact in one context may be treated as a statement of opinion in another.” Rudnick, 25 Cal. App. 4th at 1191.
Viewed as a whole, the statements about which Dr. Randal Pham MD complains consist of the authors’ opinions about Dr. Randal Pham MD and his business ventures. Several reasons support this. First, the tenor of the reviews makes evident that the statements are the conclusions of the reviews’ author(s), based on their negative experience at the Dr. Randal Pham MD’s office. The authors explain the facts – their grandmother had to wait too long for her appointment, everyone else also has to wait too long for their appointments, and Pham sold over-the-counter eyeglasses at a prescription price – which allows readers to draw their own conclusions based on the information now fully available to them. 1 CT 211. The posts are thus protected opinion under the rule set forth in Franklin v. Dynamic Details, Inc.: “When the facts underlying a statement of opinion are disclosed, readers will understand that they are getting the author’s interpretation of the facts presented.” (2004) 116 Cal. App. 4th. 375, 387. When the facts supporting an opinion are disclosed, “readers are free to accept or reject the author’s opinion based on their own independent evaluation of the facts.” Id. (assertions that activity was illegal were protected opinion where background facts were fully disclosed).
This rule is widely followed by other courts, including the Ninth Circuit. For example, in Partington v. Bugliosi (9th Cir. 1995) 56 F.3d 1147, 1155-57, an attorney (Bugliosi) who had successfully defended his client in a high-profile criminal case was sued for a book he wrote allegedly implying that another attorney (Partington) had poorly represented another man accused of the same crime. Looking at the “work as a whole,” the Ninth Circuit concluded that even “if Bugliosi had explicitly written what Partington contends his statements imply, the statements would be protected since, read in context, they are not statements implying the assertion of objective facts but are instead interpretations of the facts available to both the writer and the reader.” The Ninth Circuit “join[ed] with the other courts of appeals in concluding that when an author outlines the facts available to him, thus making it clear that the challenged statements represent his own interpretation of those facts and leaving the reader free to draw his own conclusions, those statements are generally protected by the First Amendment.” Partington, 56 F.3d at 1156-57. Accord, e.g., Standing Committee on Discipline v. Yagman (9th Cir. 1995) 55 F.3d 1430, 1439 (“no matter how unjustified and unreasonable the opinion may be or how derogatory it is,” when underlying facts are disclosed, “readers are free to accept or reject the author’s opinion based on their own independent evaluation of the facts.”); Biospherics, Inc. v. Forbes, Inc. (4th Cir. 1998) 151 F.3d 180 184-86 (where column author disclosed the factual basis for his conclusions, statements to the effect that plaintiff corporation’s shares were over-valued, that corporation’s sugar substitute product was “hype and hope,” and that investors would “sour” on the corporation when they realize the sugar substitute “isn’t up to the company’s claims” were protected opinion).
The rule explained in Franklin bars Dr. Randal Pham MD’s claim against Jenny and Alvin because it transforms their statements into statements of opinion. The reviews at issue do not just limit themselves to commentary; to the contrary, they go out of their way to include descriptions of the facts the authors relied on in reaching their opinions. They explain that Plaintiff forced patients to wait beyond their scheduled appointment times and sold over-the-counter eyeglasses at a certain price. 1 CT 211. The posts are a classic example of a situation where, in the words of the California Court of Appeal, readers were “free to accept or reject” the authors’ opinions based on their own independent evaluation of the facts – in this case, information about Dr. Randal Pham MD and his business practices provided publicly in the posts themselves.
Other features of the posts also signal that they are protected opinion. The posts were written on Internet review sites, which are full of opinionated commentary. In addition, they appear as first-person narratives, using terms like “I” and “my”. This narrative style conveys to the reader that what they are reading is the narrator’s opinion, not a verifiable statement of fact. The First Circuit has held that the “first person narrative style…puts the reader on notice that the author is giving his views,” not a statement of verifiable fact. And “[w]hile opinion pieces may contain defamatory statements, these pieces are unlikely to convey the impression that an imprecise and unverifiable statement is meant to be a statement of fact.” McCabe v. Rattiner (1st Cir. 1987) 814 F.2d 938, 843; accord Cochran v. NYP Holdings, Inc. (C.D. Cal. 1998) 58 F. Supp. 2d 1113, 1123 (quoting McCabe with approval).
In addition, courts consider seemingly “factual” statements to be statements of opinion where “the general tenor of the entire work negates the impression that the defendant was asserting an objective fact.” Partington, 56 F.3d at 1153; Cochran, 58 F. Supp. 2d at 1121. Here, the casual language included in the posts attributed to appellants – featuring colloquial terms like “scamming” or “crook” and hyperbolic analogies like “a free clinic moves faster than this place” – signals to the reader that what they are reading consists of the authors’ opinions. See, e.g., Paterno, 163 Cal. App. 3d at 1356 (“loose and figurative” language signals opinion); Biospherics, 151 F.3d at 184-86 (noting “imprecise, casual language” and a “breezy rather than solemn tone” where challenged statements were held to be opinion).
Moreover, that the posts were published in the context of an ongoing public debate about Dr. Randal Pham MD’s deceptive and unlawful business practices (as evinced by the websites) further shows that the posts are opinion. Where “potentially defamatory statements are published in a public debate … or in another setting in which the audience may anticipate efforts by the parties to persuade others to their positions … language which generally might be considered as statements of fact may well assume the character of statements of opinion.” Baker, 42 Cal. 3d at 260 (quoting Gregory, 17 Cal. 3d at 601); accord Rudnick, 25 Cal. App. 4th at 1193. Dr. Randal Pham MD’s involvement in multiple lawsuits for medical malpractice, the appearance of commentary on his business practices on literally hundreds of websites, and the Dr. Randal Pham MD’s personal involvement in promoting himself through video appeals on Yelp.com (where Plaintiff claims to have found the reviews at issue) all point to a vigorous public debate taking place over the propriety of Plaintiff’s business venture and its effects on consumers. 1 CT 44:13-18.
Finally, the statements at issue are non-actionable opinion for the added reason that statements “must be provable as false before there can be liability,” and the statements here are statements of opinion as a matter of law. Eisenberg v. Alameda Newspapers, 74 Cal. App. 4th 1359, 1382 (1999) (quoting Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-20 (1990)); accord J.A. Savage v. PG&E, 21 Cal. App. 4th 434, 444-45 (1993). Words such as “scam” or “crook,” when viewed in the context of an Internet review of a business, are not objectively verifiable statements of fact. See, e.g., McCabe, 814 F.2d at 842-43 (Statements that plaintiff’s real estate development was a “scam” were protected opinion because the “lack of precision makes the assertion ‘X is a scam’ incapable of being proven true or false”). With no defamatory statements capable of being proven true or false, Dr. Randal Pham MD’s claim fails as a matter of law.
Courts have frequently found terms like “fraud,” “crook,” and “scam” suggestive of name calling, exaggeration, ridicule, imaginative expression, or subjective evaluation, and not assertions or implications of provable facts. E.g., Old Dominion Branch No. 496, Nat’l Ass’n of Letter Carriers v. Austin (1974) 418 U.S. 264, 284–85 (“traitors” not libelous when context showed used figuratively); Greenbelt Coop. Publ’g Ass’n v. Bresler, 398 U.S. 6, 14, (1970) (“blackmail” is mere “rhetorical hyperbole”); Lieberman v. Fieger (9th Cir.2003) 338 F.3d 1076, 1080 (“Looney Tunes,” “crazy,” “nuts,” and “mentally imbalanced” could not serve as basis for defamation claim); Beverly Hills Foodland, Inc. v. United Food & Commercial Workers Union (8th Cir.1994) 39 F.3d 191, 196 (“‘Unfair” requires “a subjective determination and is therefore incapable of factual proof”); Phantom Touring, Inc. v. Affiliated Publ’ns (1st Cir.1992) 953 F.2d 724, 728 (“fake” and “phony” cannot support defamation claim); Miracle v. New Yorker Magazine (D.Haw.2001) 190 F.Supp.2d 1192, 1200 (asserting plaintiff was “nuts” was not actionable); Nicosia, 72 F.Supp.2d at 1104 (“self-serving fraud,” a “criminal” and acted “illegally” were only loose, hyperbolic expressions in light of the many surrounding criticisms). Even an “allegedly inaccurate statement as to the amount of the bill thus cannot sustain a slander claim.” Lieberman v. Fieger (9th Cir. 2003) 338 F.3d 1076, 1081. Allegations that Dr. Randal Pham MD was a fraud, crook, overbooked patients, or charged too much are nonactionable opinions or hyperbole as a matter of law.
 We note again that Dr. Randal Pham MD failed to plead any of the statements with specificity, and we are therefore forced to argue against the allegations Respodnent made in his opposition to the anti-SLAPP motion.
 The following similar types of statements have been held to be not actionable: that plaintiff is not an “honorable company” (Franklin v. Dynamic Details, Inc., 116 Cal.App.4th 375, 388-89 (2004) (this was a “classic assertion of subjective judgment”); that a judge is “dishonest” (Standing Committee on Discipline v. Yagman, 55 F.3d 1430, 1440 (9th Cir. 1995)); that a political foe is a “thief” and a “liar” Rosenaur v. Scherer, 88 Cal.App.4th 260, 280 (2001)); that plaintiff is a “shady practitioner” (Lewis v. Time, Inc., 710 F.2d 549, 554 (9th Cir. 1983)); that plaintiff is a “crooked politician” (Fletcher v. San Jose Mercury News, 216 Cal.App.3d 172, 190-91 (1989)); that plaintiff “must have trouble sleeping” (Underwager v. Channel 9 Australia, 69 F.3d 361, 367 (9th Cir. 1995)); and that the plaintiff is “immoral” or engaged in immoral behavior (McGarry v. University of San Diego, 154 Cal.App.4th 97, 116-17 (2007)).