Randal Pham sued his patients and his patients’ kids

Randal Pham has sued his patients on several occasions. When Randal Pham files these arguably frivolous lawsuits, he targets patients who he believes has wronged him in some way. Anyone debating between hiring Randal Pham as their eye doctor (ophthalmologist) or instead hiring another San Jose eye doctor who also speaks Vietnamese, they should first consider whether an eye doctor like Randal Pham is the kind of person who they want to hire. Do you want to hire a doctor who sues his patients? How about a doctor who sues his patients’ kids or grandkids? Would they hire a doctor who sues patients who are primarily of Vietnamese descent?

Please review the court documents on this website, and request documents from the Santa Clara County Superior court in the following cases:

Pham v. Lee, 1-12-cv-228332

Pham v. Thai Doan, 1-12-cv-238185

 

 

Randal Pham tries to sue the defense attorney – part III

To recap, Randal Pham filed a defamation lawsuit against his patients’ kids. When that didn’t work, he tried to sue their defense attorney. Amazing. It’s just amazing. It’s astounding that he thinks this is a productive use of his time, and even more astounding that his attorneys allowed this to be filed. But don’t take our word for it; you can check out the full version of the briefs by heading over to the Santa Clara County Superior Court and requesting the documents in Pham v. Lee, case 1-12-cv-228332.

Here’s the rest of the abridged version of the opposition brief to Dr. Randal Pham’s attempt at suing the defense attorney:

  1. The proposed amended complaint fails to state a claim for relief, and allowing such an amended complaint would be frivolous.

Plaintiff’s proposed Second Amended Complaint is fatally defective on its face, and cannot be allowed. See Vogel v. Thrifty Drue Co., (1954) 43 Cal. 2d, 184, 189; Huff v. Wilkins (2006) 138 Cal. App. 4th 732, 746. The exhibits to the proposed amended complaint are mostly illegible, but seem to consist primarily of exact copies of the court filings in this case. Such material created by an attorney during litigation is exempt from liability under California Civil Code §47.

  1. Plaintiff’s proposed amended complaint either (a) is NOT based on the same set of facts and circumstances and thus should be brought in an entirely separate lawsuit, or (b) relates directly to the matter on appeal, and thus amendment is stayed by the anti-SLAPP statute.

Plaintiff cannot have it both ways. To amend his complaint, the proposed cause of action must relate back to the initial complaint’s facts and circumstances. But in an anti-SLAPP appeal, if the amendment depends on those initial facts, then the amendment would affect the appeal – and thus the automatic stay forbids the amendment. Plaintiff argues against himself, conceding that “[[defense counsel's alleged statements] include discussion of the operative facts and status of the instant case,” while also arguing that “Plaintiffs [sic] proposed amendments do not relate to the … statements posted on Yelp.com and Insiderpages.com.” In both instances, Plaintiff’s motion must fail.

 

  1. Plaintiff argues that the amendments do not relate to the defamation action against the Lees; therefore, these unrelated causes of action should not appear in this lawsuit.

Plaintiff claims that “Plaintiffs proposed amendments do not relate to the defamation cause of action against the Lees and/or statements posted on Yelp.com and Insiderpages.com.” Plaintiff’s Brief at p.4.

First of all, if this were true, the motion would fail because no authority allows amending a complaint to add an entirely new defendant with an entirely new cause of action which arose after the original complaint was filed. “The complaint, whether original or amended, can properly speak only of things which occurred either before or concurrently with the commencement of the action.” Califomia Farm & Fruit Co. v. Schiappa -Pietra (1907) 151 Cal. 732, 742. The amendment is attempting to add a entirely different party, which is not favored. California Air Resources Board v. Hart (1993) 21 Cal. App. 4th 289, 301. This amendment changes the nature of the action, and is an attempt to join two completely separate actions. Plaintiff’s counsel is attempting to avoid court scrutiny of whether two separate actions should be consolidated or coordinated, as well as attempting to avoid venue considerations. The attempt is improper, prejudicial and should be denied.

Second, Plaintiff’s statement is an outright lie. We do not say this lightly, but Plaintiff’s attorneys are lying to the court. Even though they claim that their amendment does not relate to the defamation cause of action, Plaintiff seeks to alter paragraph 15, the very core of the defamation cause of action alleged “against all Defendants” – including the Lees. Plaintiff seeks to add the following allegations against the existing defendants:[1]

14. 15. Plaintiff is informed and believes and thereon alleges that defendants have made false and defamatory statements regarding plaintiff and defendants knew that such statements were false at the time they were made. The statements, including but not limited to the publications shown in Exhibit A, Exhibit B, Exhibit C, and Exhibit D and Exhibit E to this First Amended Complaint were made with malice and intent to injure plaintiff’s business and business reputation. The statements were not discovered by plaintiff until on or around mid-2012. The websites created by Defendant [i.e. the website you're reading], attached hereto as Exhibit D and Exhibit E were not discovered until on or around April 2013.

They are trying to create liability for the Lees based on Exhibits D and E – brand new exhibits with brand new facts that never before appeared in this case. Plaintiff is trying to add new facts (and a new party) to a claim currently on appeal. This conduct is prohibited by the automatic stay. Plaintiff’s attorneys know  this, yet still calendared this motion to force defense counsel to draft an opposition during the same time as the Appellate Reply brief is due. They filed this motion for one purpose only: To harass defense counsel, both by adding defense counsel as a defendant, and by forcing him to oppose their frivolous motion while writing the Reply brief. Then they lied to the court by materially misrepresenting the substance of their proposed amendments, hoping that the court would not actually compare their proposed complaint with the original complaint. Not only should their motion be denied, but Plaintiff’s counsel Neha Sareen and Ali Aalaei should be personally sanctioned for making knowing misrepresentations to the court.

  1. If the amendments do relate to the defamation action against the Lees, this related cause of action cannot be added to the complaint while the anti-SLAPP motion is on appeal.

Plaintiff says that although “Plaintiff is willing and able to file a separate lawsuit against defense counsel for his harmful conduct, the instant proposed amendments concern the websites “randalpham.co” and “randalpharn.org;” these websites include discussion of the operative facts and status of the instant case.” Plaintiff’s Brief at p. 8.

An attorney’s “discussion of the operative facts and status of the instant case” is protected by the litigation privilege and any tort claim based on such speech would fail. Putting that aside, if the content of the websites (Exhibits D and E to the proposed complaint) really do “include discussion of the operative facts” of this case, then a motion to add such allegations to this lawsuit is forbidden by the automatic stay.

This lawsuit is not a black hole, drawing in any person who comments on the case. When the San Jose Mercury News posts a report that “include[s] discussion of the operative facts and status of the instance case,” will Plaintiff move to amend the complaint? When WestLaw publishes the public court filings online, as defense counsel is alleged to have done, will Plaintiff add WestLaw as a defendant? Naming as defendants people who simply quote public court documents is an insult to the First Amendment and the litigation privilege.

Conclusion

When a Defendant appeals, a Plaintiff cannot go back and fiddle with the trial court pleadings while the appellate court is scrutinizing them. Since this appeal is completely based on the complaint, Plaintiff cannot amend the complaint while the appeal is pending.

We ask the court to deny Plaintiff’s motion.



[1] Additions appear underlined, deletions appear struck-through.

 

Randal Pham, MD, tries to sue defense attorney

Adding to his long list of lawsuits, eye doctor Randal Pham has now attempted to sue a lawyer for the public court documents that appear on this very website. Here’s another abridged portion of the lawyer’s opposition to Pham’s attempt to amend the complaint to add the lawyer as a defendant in Pham v. Lee, 1-12-cv-228332 in Santa Clara County Superior Court:

  1. No statutory or case law allows Plaintiff to amend a complaint in the trial court while an appeal is pending.

Plaintiff cannot cite a single case – not one – in which a party to an anti-SLAPP appeal successfully amended the complaint while the appeal was pending. The only six cases Plaintiff cites in his moving papers make this point clear. SeeVarian Med. Sys., Inc. v. Delfino, 35 Cal. 4th 180, 189 (2005) (leave to amend in anti-SLAPP case denied); Slack v. Metropolitan Trust Co., 9 Cal. App. 2d 87, 88 (1935) (not an anti-SLAPP case, and leave to amend granted only because “proposed amendment did not set up a new cause of action, neither did it in any way seek to change the nature of the action” – which is the opposite of what Plaintiff seeks here); Nestle v. Santa Monica, 6 Cal. 3d. 920 (1972) (not an anti-SLAPP case; not an attempt to amend complaint during appeal); Morgan v. Super. Ct. of L.A. Cnty., 172 Cal. App. 2d 527,530 (1959) (not an anti-SLAPP case; not an attempt to amend complaint during appeal; leave to amend granted only because it would not prejudice other party – unlike here, where it would alter the nature of the case on appeal); Saari v. Super. Ct. of Humboldt Cnty., 178 Cal. App. 2d 175, 178 (1960) (not an anti-SLAPP case, and not an attempt to amend case on appeal; leave to amend personal injury complaint granted only because same defendant and same conduct was at issue, unlike this motion, which seeks to add a wholly new defendant and new conduct); Atkinson v. Elk Corp., 109 Cal. App. 4th 739, 761 (2003) (not an anti-SLAPP case; not an attempt to amend while case is on appeal; court holds that leave to amend should be granted only if “no prejudice is shown to the adverse party,” unlike here, where Defendants will suffer prejudice when their appeal is rendered moot if the complaint on which it is based suddenly changes).

Randal Pham (San Jose doctor) tries to sue defense attorney

Adding to his long list of lawsuits, Randal Pham has now attempted to sue a lawyer for this very website. Here’s another abridged portion of the lawyer’s opposition to Pham’s attempt to amend the complaint to add the lawyer as a defendant in Pham v. Lee, 1-12-cv-228332 in Santa Clara County Superior Court:

Argument

  1. This court is deprived of jurisdiction during an anti-SLAPP appeal; this stay is mandatory, not discretionary, and voids all trial court proceedings related to the anti-SLAPP motion.

An appeal deprives a trial court of subject matter jurisdiction over the case. Under CCP section 916, “the trial court is divested of” subject matter jurisdiction over any matter embraced in or affected by the appeal during the pendency of that appeal. Betz v. Pankow, 16 Cal.App.4th 931, 938 (1st Dist. Cal. Ct. App. 1993). “The effect of the appeal is to remove the subject matter of the order from the jurisdiction of the lower court….” Statler v. Superior Court, 107 Cal. 536, 539 (Cal. 1895). Thus, “that court is without power to proceed further as to any matter embraced therein until the appeal is determined.” Ibid.; see also 2 Witkin, Cal. Procedure (4th ed. 1997) Jurisdiction, § 319, p. 893 (“when the cause is taken over by a reviewing court on appeal or other proceeding in review, the trial court is divested of jurisdiction of the subject matter during the period of review, and has no power to vacate or modify the judgment or otherwise to deal with the cause”). And any “proceedings taken after the notice of appeal was filed are a nullity.” Davis v. Thayer, 113 Cal.App.3d at p. 912, 170 Cal.Rptr. 328; see also Kinard v. Jordan (1917) 175 Cal. 13, 16, (finding that the lower court order “must be deemed a nullity”).

The California Supreme Court held in Varian Medical Systems, Inc. v. Delfino[1] that an appeal “stays all further trial court proceedings ‘upon the matters embraced’ in or ‘affected’ by the appeal.” 35 Cal.4th 180, 189 (2005). A matter is embraced in or affected by the appeal if proceedings on the matter would affect the effectiveness of the appeal.  Ibid.

Thus, the proceedings must be stayed if they “directly or indirectly seek to ‘enforce, vacate or modify’ “ the order from which the appeal was taken, would affect the appellate court’s ability to resolve the appeal or if the result of the proceedings might be irreconcilable with the decision on appeal. Delfino, supra, 35 Cal.4th at 189–190.

Since the appeal is based solely on the sufficiency of the complaint, amending a complaint would “directly …. modify” the order from which the appeal was taken, and would affect the appellate court’s ability to resolve the appeal. This point is so obvious, and Plaintiff’s motion so clearly frivolous, that Defendants are flabbergasted that Plaintiff is pursuing this course of action. If Plaintiff wants to amend his complaint, he can try to do it after the appeal. He cannot do it while an appeal is pending. This is black letter law.

In Bank of San Pedro[2], the California Supreme Court explained the longstanding rule automatically staying trial court actions pending appeal, and why any trial court order undertaken during an appeal is not just “voidable,” but automatically void:

“The principle of ‘subject matter jurisdiction’ relates to the inherent authority of the court involved to deal with the case or matter before it.” Conservatorship of O’Connor (1996) 48 Cal.App.4th 1076, 1087, 56 Cal.Rptr.2d 386. Thus, in the absence of subject matter jurisdiction, a trial court has no power “to hear or determine [the] case.” Abelleira v. District Court of Appeal, (1941) 17 Cal.2d 280, 288, 109 P.2d 942. And any judgment or order rendered by a court lacking subject matter jurisdiction is “void on its face….” Rochin v. Pat Johnson Manufacturing (1998) 67 Cal.App.4th 1228, 1239, 79 Cal.Rptr.2d 719.

Allowing a SLAPP plaintiff leave to amend the complaint before the appeals court has a chance to issue a ruling would completely undermine the anti-SLAPP statute by providing the pleader a ready escape from section 425.16’s quick dismissal remedy. Instead of having to show a probability of success on the merits, the SLAPP plaintiff would be able to go back to the drawing board with a second opportunity to disguise the vexatious nature of the suit through more artful pleading, or through adding additional frivolous defendants. This would trigger a second round of pleadings, a fresh motion to strike, and inevitably another request for leave to amend. By the time the defendant digs out of this procedural quagmire, the SLAPP plaintiff will have succeeded in his goal of delay and distraction and running up the costs of his opponent. See Dixon v. Superior Court, 30 Cal.App.4th at p. 741 [36 Cal.Rptr.2d 687]. Such a plaintiff would accomplish indirectly what could not be accomplished directly, i.e., depleting the defendant’s energy and draining his or her resources. Scientology, 42 Cal.App.4th at p. 645. This would totally frustrate the Legislature’s objective of providing a quick and inexpensive method of unmasking and dismissing such suits. Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 823 [33 Cal.Rptr.2d 446].

The omission of any provision in section 425.16 for leave to amend a SLAPP complaint was not the product of inadvertence or oversight. Accordingly, this court should refuse Plaintiff’s invitation to read into section 425.16 an implied right of leave to amend. Simmons v. Allstate (3rd. Dist. 2001) 92 Cal.App.4th 1068, 1073-1074].

 


[1] The court in Delfino cited the Legislature’s deletion of conditional stay provision in anti-SLAPP statutes as supporting interpretation of statutes to mandate automatic stay on appeal. 35 Cal.4th 180, 194–196, 25 Cal.Rptr.3d 298, 106 P.3d 958.

 

[2] 3 Cal.4th 797, 12 Cal.Rptr.2d 696, 838 P.2d 218.

 

Randal Pham MD, an eye doctor, cannot win his lawsuit against his patients in San Jose, and here’s why

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. 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[1] 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.[2] 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.

 

 



[1]     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.

[2] 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)).

 

Randal Pham MD: The Quality of Ophthalmology Care and Patients’ Informed Access to It Are Issues of Public Interest.

The Quality of Ophthalmology Care and Patients’ Informed Access to It Are Issues of Public Interest.

 

The California Legislature has expressed its intent that health professionals, including ophthalmologists and optometrists, should be supervised and regulated by the State to protect the public. (See Bus. & Prof Code, § 3041, et. seq.). The State regulatory boards, including the Medical Board and the Board of Optometry, have been established for this purpose. (Bus. & Prof. Code, § 101.6.) By intending to strictly regulate this profession, the Legislature has made clear that the quality of care provided by ophthalmologists is of serious concern to Californians. Id; City of Monterey v. Carrnshimba (2013) 215 Cal.App.4th 1068 (legality of medical clinic’s operations are a matter of public interest); Lee v. Superior Court (2009) 177 Cal.App.4th 1108, 1114 (finding a “public interest in protecting the health and safety of others”); DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 567 (finding statements criticizing medical product to be in the public interest and subject to anti-SLAPP protections); Feminist Women’s Health Center v. Blythe (1995) 32 Cal.App.4th 1641, 1653 (ensuring patients’ safe access to medical services is in the public interest); West Covina Hospital v. Superior Court (1986) 41 Cal.3d 846, 853  (finding “legislative judgment” that there exists a “public interest in medical staff candor”) (citing Evidence Code §1157).

Respondent himself has appeared to testify at public meetings of the Medical Board of California, the body charged with regulating his profession. 1 CT 83-90. He has written journal articles and broadcast videos and radio programs discussing his profession. 1 CT 44:13-18, 45:10-13, 45:21-24, 92-93. The quality of ophthalmology care and patients’ informed access to it are therefore issues of public interest. For purposes of subdivisions (e)(3) and (e)(4), the anti-SLAPP law does not require that there be a pre-existing controversy about a product or service, only that the allegedly wrongful statements relate to an issue of public interest. Wilbanks v. Wolk, supra, 121 Cal.App.4th at pp. 898-900; Dowling v. Zimmerman, supra, 85 Cal.App.4th at p. 1420; Nygard v. Uusi-Kerttula, supra, 159 Cal.App.4th at p. 1042. Appellants’ alleged statements informing consumers about the quality of care provided by Respondent, including the effectiveness of the eyeglasses sold by Respondent, are thus in the public interest and protected by the anti-SLAPP statute.

4.     The Allegedly Defamatory Statements Are Not About a Private Dispute.

As discussed above, the allegedly defamatory statements were made in a public forum about issues of public interest and are therefore protected under the anti-SLAPP law. The reviews were not about a private dispute because they involve an industry that affects large numbers of people.

In this regard, this case is analogous to Wilbanks v. Wolk, supra, 121 Cal.App.4th 883. The statements at issue in Wilbanks involved the public interest since the activities of the parties “touched large numbers of people.” Wilbanks expressly states that although the plaintiff brokers’ business practices “do not affect a large number of people” by themselves, what was critical was that the industry writ large “touches a large number of persons,” and that consumer information pertaining thereto was thus “information concerning a matter of public interest.” Wilbanks v. Wolk, supra, 121 Cal.App.4th at pp. 898-99. Wong v. Jing similarly held that consumer information “implicates matters of public concern that can affect many people” and thus “is generally deemed to involve an issue of public interest for purposes of the anti-SLAPP statute.” Wong v. Jing, 189 Cal.App.4th 1354, 1366 (2010) (holding online review of dentist based on a single transaction involved issue of public interest).

As in Wilbanks and Wong, the reviews here were not simply an attack on respondent and his practices, but were consumer protection information comparing the techniques of respondent against the ideal practices of an ophthalmologist (i.e. prescribing actual prescription glasses, seeing patients on time), and alerting patients to choose alternative treatment providers. See Wilbanks v. Wolk, supra, at pp. 899-900. Such consumer protection information is protected under subdivisions (e)(3) and (e)(4) of the anti-SLAPP law as a matter of public interest. See Wilbanks v. Wolk, supra, 121 Cal.App.4th at pp. 898-900 (“[The] statements were a warning not to use plaintiffs’ services. In the context of information ostensibly provided to aid consumers choosing among brokers, the statements, therefore, were directly connected to an issue of public concern”).

The allegedly wrongful statements alleged in the Complaint are not about a private dispute but clearly constitute consumer protection information, and relate to the public discussion of the quality of ophthalmology care, patients’ informed access to it, and the use of non-prescription eyewear, all issues of public interest.

Legal reasoning why ophthalmologist Randal Pham’s lawsuit against his patients is frivolous

The Legislature enacted California’s Anti-SLAPP law to protect the fundamental constitutional rights of petition and speech, and directed that the law be broadly construed.

 

In response to the “disturbing increase” in meritless lawsuits brought “to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances,” the Legislature overwhelmingly enacted section 425.16, California’s anti-SLAPP law. Stats. 1992, ch. 726, § 2. In 1997, the Legislature unanimously amended the statute to expressly state that it “shall be construed broadly.” Stats. 1997, ch. 271, § 1; amending § 425.16(a); CCP 425.16(a) (“To this end, this section shall be construed broadly.”).

In 1999, the California Supreme Court underscored this requirement of broad construction, directing that courts, “whenever possible, should interpret the First Amendment and section 425.16 in a manner ‘favorable to the exercise of freedom of speech, not to its curtailment.’ ” Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal.4th 1106, 1119, quoting Bradbury v. Superior Court (1996) 49 Cal.App.4th 1170, 1176.

 

 

 1. Section 425.16 Sets Forth a Two-Step Analysis.

 

Section 425.16 sets forth a two-step process for evaluating a special motion to strike. First, the defendant must make a prima facie showing that the plaintiff’s cause of action arises from an act in furtherance of the right of petition and/or the right of free speech in connection with a public issue. § 425.16, subd. (b)(1); Navellier v. Sletten (2002)  29 Cal.4th 82, 88 (“Navellier I”); Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 894. The burden then shifts to the plaintiff to establish a probability of prevailing on her claims, by establishing that “the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment.” Wilson v. Parker, Covert & Chidester (2003) 28 Cal.4th 811, 821 [citations and internal punctuation omitted]. If the plaintiff does not meet this burden, the anti-SLAPP motion must be granted. Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal. 4th 180, 192.

 2. The Scope of Acts Covered by Section 425.16.

Subdivision (e) of the anti-SLAPP statute provides four illustrations of the types of acts covered by the statute, the last two of which are at issue here:

(3) 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;

(4) or any other conduct 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.

Summary of facts in lawsuit where San Jose doctor Randal Pham sued his patients’ kids

This comes straight from the appellate brief:

 

SUMMARY OF FACTS

  1. 1.    Respondent Randal Pham.

Respondent Randal Pham is a nationally known ophthalmologist, talk show host, and radio personality. 1 CT 44, 45, 46, 47, 77-78, 144-151. According to his personal website, he has over 20 years of experience in the field and has lectured at several conferences and symposia. 1 CT 47:1-9, 23-28; 1 CT 112, 125, 158, 165, 172. He was a professor at Stanford University and has appeared on stage at panel discussions in Chicago and Tucson speaking about his medical practice. Ibid; 1 CT 48:3-6, 178. He runs two ophthalmology clinics in the Bay Area, and routinely seeks media attention to publicize his business practices. He is prominent among the Vietnamese community, and some of his media appearances cater strongly to the nation’s Vietnamese immigrant population. Among his ventures was hosting a radio show on KVVW with “Ms. Vietnam” and appearing on a national Vietnamese language television station. Ibid. He publicly endorses politicians, who have used his endorsement in campaign literature. 1 CT 45:1-9, 66:12. Since 2000, Pham’s patients have sued him for medical malpractice at least three times. 1 CT 48:7-18.

  1. 2.    Appellants Alvin Lee and Jenny Lee.

Appellants drove their grandmother and father to appointments at Pham’s office on many occasions over the past ten years.

Chinh Thi Truong is the grandmother of Appellants Jenny Lee and Alvin Lee. 1 CT 186:4-11, 33:1-6, 41:1-27. From 1999 until July 2012, Truong was Pham’s patient. 1 CT 186:4-20. For over ten years, Truong arrived on time for her appointments. And for over ten years, Pham was consistently late in seeing Truong. Despite arriving on time, Truong often had to wait over an hour before getting to see her doctor. 1 CT 186:4-20. Appellants Alvin and Jenny often drove their grandmother to her appointments at Pham’s office, each time encountering delays. 1 CT 41:1-27, 33:7-13, 33:20-28, 34:1-10. Only once was Pham on time for Truong’s appointment: On July 7th, 2012 — after Pham had seen the online reviews that are the subject of this dispute, and after he decided to sue Truong’s granddaughter and grandson. Understandably, Truong is no longer Pham’s patient. Ibid.

Young Lee is the father of Appellants Jenny Lee and Alvin Lee. 1 CT 188:1-5, 189:4-7; 1 CT 33:4-6; 1 CT 41:4-6. Young Lee was one of Pham’s patients for over ten years, from 2000 until 2012. 1 CT 188:1-5. In March 2012, Young Lee had an appointment with Pham (Pham was late, as usual). 1 CT 188:6-9. Pham examined Young Lee, who had complained of difficulty reading his computer screen. Pham told Young Lee that he needed prescription eyeglasses, which Pham could sell to him. Those prescription glasses, Pham said, would cost $350, but Pham could give Young Lee a “discount” if Young Lee “paid him right away.” 1 CT 188:9-15. Young Lee agreed, and paid Pham $199 that same evening around 6:30 p.m. Fifteen minutes after his appointment, Young had a change of heart, and left Pham a voice message canceling the eyeglasses order. 1 CT 188:16-18. The next morning, on March 28, Pham called Young to say he could not cancel the order because the supposedly custom, prescription eyeglasses had been “ordered” and had (somehow) already arrived. 1 CT 188:19-21. Young drove to Pham’s office, where Pham presented the “brand new” glasses, which were dirty and appeared used. 1 CT 188:21-28. When Young took the glasses home and tried to read the computer screen, he could not. The eyeglasses were useless. 1 CT 188:21-28, 189:1-4. Young immediately called Pham to complain; Pham was dismissive and angry, telling Young that if he wanted to read better he should “move the computer screen closer.” 1 CT 189:1-4.

Young showed the glasses to his friends and family. They remarked that they recognized the eyeglasses; they were not $350 prescription eyeglasses as Pham had claimed, but a pair of common drugstore glasses available for less than $15 at Walgreens. 1 CT 189:4-8. Young’s son, Appellant Alvin Lee, performed an online search and found the exact same pair for less than $16 on Amazon.com. 1 CT 42:1-7; 1 CT 189:4-8.

Young returned to Pham’s office on March 29, 2012 and showed Pham a printout of the Amazon.com advertisement. He told Pham the glasses were not worth anywhere near $200 and demanded a refund. Pham said nothing except that he would not refund the money. Young left the useless glasses at Pham’s office and left. 1 CT 189:8-12.

A few days later, Pham called Young back. After Pham saw negative reviews of his business practices online, Pham had a sudden change of heart: Now he would refund Young’s money. 1 CT 189:12-15. Pham asked Young to remove the online reviews, which, of course, Young did not write. 1 CT 189:12-15.

This isn’t the first time Pham has defrauded his patients or been late to an appointment. Pham is consistently late to appointments, overbooks his patients, and fraudulently charges prescription prices for over-the-counter eyeglasses. 1 CT 189:15-20; 1 CT 33:22-28; 1 CT 41:7-27; 1 CT 42:5-7. Because of Pham’s systemic pattern of abuse of elderly and Vietnamese immigrant populations, Appellant Jenny Lee filed a complaint with the Better Business Bureau exposing Pham’s fraud. 1 CT 33:22-28. This complaint to the Better Business Bureau is the sole statement for which there is any evidence that appellants made. Pham, however, believes Jenny Lee and Alvin Lee wrote online reviews on the websites Yelp and InsiderPages, and retaliated against them for this perceived slight by filing this lawsuit against Jenny and Alvin for defamation.

  1. 3.    Online review websites as important sources of consumer information.

Sites like Yelp host consumer-written reviews of businesses, and they also allow business owners to publicly respond to negative Yelp reviews of their business. 1 CT 44:23-28; 48:18-21; 49:7-11. The statements at issue purportedly appeared on a public area of Yelp’s website, which is accessible to anyone with an internet connection. 1 CT 52-53, 55-56, 58. Similarly, InsiderPages hosts consumer reviews and allows anyone with an internet connection to post responses.

Yelp was founded in 2004 to help people find “local businesses, like dentists, hair stylists and mechanics.” Yelp had an average of 78 million monthly unique visitors in early 2012. In addition to reviews, Yelp allows users to talk with other users. Every business owner or manager can set up a free account to post photos and send messages to customers. 1 CT 184.

  1. 4.    Appellants’ purported posts on Yelp and InsiderPages.

Pham’s complaint did not specify what statements he found to be libelous. 1 CT 211:1-28. Attached to Pham’s complaint is what purports to be a printout of two online review websites, but the complaint does not explain (1) which statements are supposedly false or defamatory, (2) who said the statements, or (3) what the truth is. Id. Appellants filed an anti-SLAPP motion to strike and motion for judgment on the pleadings against the deficient complaint.

The allegedly defamatory statements (and their alleged authors) were explicitly stated for the first time in Pham’s opposition to the anti-SLAPP motion. 1 CT 211:6-23. Those statements and the purported authors are:

  1. “They [Dr. Pham's clinic] breached patient trust by scamming me out of $200. The doctor said he was going to order special glasses to help with my vision. He ended up ordering a pair of standard reading glasses you could purchase from the drug store. Do not trust him. He does this  systematically to other patients as well.” This statement was attributed to Jenny Lee.
  2. “Defendants’ statements shown in Exhibit C to the Complaint falsely provide that Defendant was a patient of Plaintiff.” This statement was not explicitly attributed to anyone.
  3. “He’s a crook. Stay away.” This statement was attributed to Jenny Lee.
  4. Plaintiff “overbook[s] every single day to maximize how much money they make in a day,” and “there is definitely something wrong with [Plaintiff’s] scheduling system.” This statement was attributed to Alvin Lee.
  5. The publication of a “one star” review of Plaintiffs services. This “statement” was not explicitly attributed to anyone in particular.
  6. Everything in the anti-SLAPP motion itself (“Plaintiff maintains that the Motion compounds the defamation”).  This statement is attributed to Defendants’ attorney, apparently.

1 CT 211:6-23.

Each of these statements is either true, rhetorical hyperbole, a statement of opinion, or (in the case of Defendants’ attorney’s statements) privileged. No evidence in the record on appeal shows otherwise. At least some of these purported statements do not actually exist online. 1 CT 44:19-22, 52-53, 55-56. 

Background information on lawsuit involving Dr. Randal Pham MD

Straight from the appellate brief:

 

Background

Both Young Lee and Chi Trinh Troung, the father and grandmother respectively of appellants/defendants Jenny Lee (Jenny) and  Alvin Lee (Alvin), were patients of respondent/plaintiff Randal Pham (Pham), an ophthalmologist. For years, Jenny and Alvin drove their grandmother and father to Pham’s office. And for years, Pham was late for those appointments. Appellants’ father and grandmother had heard numerous other patients in the waiting room complaining about Pham’s business practices, including the wait time. Pham’s advertising targets the elderly Vietnamese community, an immigrant population especially vulnerable to shady business practices.

In 2012, after years of consistently late appointments, Pham tried to sell appellants’ father a pair of cheap drugstore eyeglasses for $199, after tricking appellants’ father into believing they were prescription glasses. Appellants’ father took the glasses home and showed them to appellants, who looked up the eyeglasses model on the internet and discovered they were cheap, non-prescription glasses worth no more than $15. Appellants’ father returned to Pham and demanded a refund. Pham hemmed and hawed, but eventually relented – after Pham discovered negative reviews on the internet that seemed to describe this very incident.

The online reviews described the experience of the author(s), and shared consumer protection information with readers who, like the author, may have been unaware that not all eye doctors practice the same way. The reviews of Pham on the consumer information websites Yelp.com and InsiderPages.com compared the methods of Pham with what the author believed to be the best practices for such doctors. The reviews were critical, because they grew out of the author’s negative experience with Respondent Pham. They exposed Pham’s poor business practices, warning other consumers about this doctor so that thousands more patients would not also suffer and waste their time and money. However, the reviews did not defame Respondent. They were non-actionable consumer commentary and statements of opinion (depending on the review).

Rather than determine whether Jenny and Alvin wrote the reviews, Respondent simply sued Jenny and Alvin for defamation. Appellants filed a motion for judgment on the pleadings and a special motion to strike the Complaint as a meritless SLAPP pursuant to Code of Civil Procedure section 425.16. The trial court found that the anti-SLAPP law did not apply to Respondent’s claims, and never addressed whether Respondent had shown a probability of prevailing on his claim. The trial court denied the motion for judgment on the pleadings and declined to determine as a matter of law whether the statements at issue were opinion or fact.

The trial court erred; appellants’ anti-SLAPP motion should have been granted as a matter of law. Appellants’ purported reviews[1] of respondent’s services, the sole basis for respondent’s claims, constituted statements made in a public forum about issues of public interest, and are protected under the anti-SLAPP law. Respondent did not show a probability of prevailing on his claims, because the challenged statements were non-defamatory statements of opinion, and no evidence shows that appellants even published the statements. This action should be dismissed as the SLAPP that it is.



[1]     Respondent never provided a shred of evidence showing that appellants are the authors of the reviews at issue. This motion assumes (without admitting) for the sake of argument that appellants did author the reviews, though it is unclear which appellant is alleged to have authored which review.

Here’s what happened when Randal Pham MD filed a lawsuit against his own patients’ kids

This comes straight from the appellate brief:

INTRODUCTION

Opinions, even scathingly critical ones, “are the lifeblood of public discussion promoted by the First Amendment, under which speakers remain free to offer competing opinions based upon their independent evaluations of the facts.” Paterno v. Superior Court, 163 Cal. App. 4th 1342, 1356 (2008). As California’s appellate courts have recognized, we “must be cautious lest we inhibit vigorous public debate about public issues. If we err, it should be on the side of allowing free-flowing discussion of current events. We must allow plenty of ‘breathing space’ for such commentary.” Rudnick v.  McMillan, 25 Cal. App. 4th 1183, 1193 (1994).

This case is about the attempt of a well known doctor, Respondent Randal Pham, to silence critical online reviews of his business practices. Given the critical nature of the posts, it is understandable that Pham does not like them. But criticism of those who operate a public business as important as an ophthalmologist’s office – especially public figures like Pham who have invited attention and comment by seeking out the media through prolific online advertising, political involvement, and self-promotion through TV and radio talk shows – is a legitimate and important part of keeping business owners honest and law-abiding. Fraud – especially recurring fraud – is an issue of public concern, as evinced by the multiple malpractice lawsuits filed against Pham over the last ten years, the ongoing Better Business Bureau investigation into Pham’s conduct, and the public’s interest in the safety of medical practitioners as expressed by the state legislature. Not only are Pham’s claims barred by the First Amendment protection for statements of opinion, but even to the extent any of the statements are verifiable statements of fact, Pham’s action would still fail because the statements at issue are at least substantially true. In any event, Pham is a limited purpose public figure who cannot prove constitutional “actual” malice. Pham’s lawsuit also fails for lack of a retraction request as required by California’s retraction statute. Accordingly, appellants ask this court to reverse the trial court, and grant their motion to strike Respondent’s Complaint pursuant to Code of Civil Procedure  425.16.