John Diep, M.D., et al. v. Phu Vo, et al.

B. First Step: Protected Activity

“A defendant meets his or her burden on the first step of the anti-SLAPP analysis by demonstrating the acts underlying the plaintiff’s cause of action fall within one of the four categories spelled out in [Code of Civil Procedure] section 425.16, subdivision (e). [Citations.]” (Collier v. Harris (2015) 240 Cal.App.4th 41, 50-51.) Examples of protected speech include: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement 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, (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, or (4) 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.

(Code Civ. Proc., § 425.16, subd. (e).)

“In deciding whether the ‘arising from’ requirement is met, a court considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ [Citations.]” (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 670.)

The court finds that Code of Civil Procedure section 425.16, subdivisions (e)(3) and (4) apply to the statements at issue here. First, the court agrees with Vo’s point that statements “posted on internet sites are writings made in a public forum within the meaning of [Code of Civil Procedure section] 425.16(e)(3).” (Memorandum of Points and Authorities in Support of Anti-SLAPP Motion (“MPA”), p. 5:15-23; see Barrett v. Rosenthal (2006) 40 Cal.4th 33, 41, fn. 4 [“Web sites accessible to the public, like the ‘newsgroups’ where Rosenthal posted Bolen’s statement, are ‘public forums’ for purposes of the anti-SLAPP statute.”], internal citations omitted.)

Nor do Plaintiffs attempt to dispute this point in their opposition. Instead, they argue that Vo “recasts his statements as a review of physician [sic] and therefore in the public interest. But the actionable statements were not taken from Vo’s reviews of Dr. Diep.” (Opposition to Vo’s Anti-SLAPP Motion (“Opposition”), p. 11:21-24.)

The court disagrees and struggles to see how whether if the “actionable statements were not taken from Vo’s review of Dr. Diep” and instead were “hijacked” internet posts has any bearing on the court’s analysis. (Opposition, pp. 11:21-12:4.) Nor is the court persuaded by Plaintiffs’ attempts to distinguish Yang v. Tenet Healthcare Inc. (2020) 48 Cal.App.5th 939 (Yang). In Yang, the plaintiff Yang sued a hospital, its medical staff, and individual doctors for falsely stating to “healthcare providers,” “medical practices,” Yang’s “patients,” and “members of the general public” that Yang did not have privileges for certain procedures. (Yang, supra, 48 Cal.

App. 5th at p. 943.) The defendants in Yang also allegedly told these people that Yang “rendered care below applicable standards of practice,” that “[h]er behavior and medical ethics were below applicable standards,” that she was not “qualified or competent to practice her specialties,” that she was “dangerous to [her] patients and to employees and members” of the hospital’s medical staff, and that she was “‘under investigation.’” (Ibid.) The defendants in Yang argued that these statements “were made in furtherance of the exercise of the right of free speech in connection with a public issue or an issue of public interest,” citing Code of Civil Procedure section 425.16, subdivision (e)(4). (Id. at p. 944.)

The Court of Appeal in Yang found that Code of Civil Procedure section 425.16, subdivision (e)(4) applied to the statements at issue. (Yang, supra, 48 Cal. App. 5th at p. 949.) The allegations that defendants informed Yang’s patients and the general public that “she was generally unqualified, as well as [a defendant’s] statement that the hospital had directed several doctors to ‘no longer refer patients’ to Yang,” contributed to a public issue because these statements “were communicated to the public, not just to discrete doctors or hospital staff members” and the “hospital’s directive that doctors should no longer refer patients to Yang is similar to a statement made by a third party to aid and protect consumers.” (Id. at p. 948.) Statements “aimed at protecting members of the public who might see a doctor are sufficiently broadly applicable.” (Id. at p. 949.)

Thus, under Yang, the issue is whether Vo’s alleged statements “were communicated to the public” and “made by a third party to aid and protect consumers,” not whether Vo “had a duty to inform” or “hijacked other user’s posts.” Given this, the court is not persuaded by Plaintiffs’ arguments as to the first prong of the anti-SLAPP statute and finds that Vo’s alleged statements regarding the treatment he received from Plaintiffs are protected speech under Code of Civil Procedure section 425.16, subdivision (e). (See Yang, supra, 48 Cal.App.5th at pp. 948-949; Healthsmart Pacific, Inc. v.

Kabateck (2016) 7 Cal.App.5th 416, 429 [“[M]embers of the public, as consumers of medical services, have an interest in being informed of issues concerning particular doctors and health care facilities. [Citations.]”]; Carver v. Bond (2005) 135 Cal.App.4th 328, 344 [“The article warned readers not to rely on doctors’ ostensible experience treating professional athletes, and told what it described as ‘a cautionary tale’ of plaintiff exaggerating that experience to market his practice. Since the statements at issue served as a warning against plaintiff’s method of self-promotion, and were provided along with other information to assist patients in choosing doctors, the statements involved a matter of public concern.”], internal citation omitted.)

For the reasons discussed above, the court concludes that Vo has satisfied the first prong of the anti-SLAPP statute.

C. Second Step: Probability of Prevailing

The court now turns to whether Plaintiffs have demonstrated a probability of the first amended complaint’s (“FAC”) 2 causes of action prevailing, the second step in an anti-SLAPP analysis. A plaintiff meets its burden of showing a probability of prevailing by demonstrating “that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” (Soukop v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291 (Soukop), internal citations and quotation marks omitted.)

This “probability of prevailing” standard is similar to the standard governing a motion for summary judgment in that it is the plaintiff’s burden to make a prima facie showing of facts that would support a judgment in the plaintiff’s favor. (Taus v. Loftus (2007) 40 Cal.4th 683, 714.) Stated differently, the “plaintiff need only establish that his or her claim has ‘minimal merit’ to avoid being stricken as a SLAPP.” (Soukup, supra, 39 Cal.4th at p. 291, internal citations omitted.)

A plaintiff must show that there is admissible evidence that, if credited, would be sufficient to sustain a favorable judgment. (McGarry v. University of San Diego (2007) 154

2 The court notes that Plaintiffs filed an amended complaint after Vo filed a special motion to strike the initial complaint. Technically, the filing of the FAC rendered Vo’s anti-SLAPP motion moot. (JKC3H8 v. Colton (2013) 221 Cal.App.4th 468, 477.) However, in the interest of judicial economy and because Plaintiffs oppose the motion on its substantive merits, the court will treat Vo’s motion to strike as though it is directed at the FAC.

Cal.App.4th 97, 108.) While the burden on the second prong belongs to the plaintiff, in determining whether a party has established a probability of prevailing on the merits of his or her causes of action, a court considers not only the substantive merits of those causes of action, but also all defenses available to them. (Traditional Cat Assn., Inc. v. Gilbreath (2004) 118 Cal.App.4th 392, 398.) Affidavits or declarations not based on personal knowledge, or that contain hearsay or impermissible opinions, or that are argumentative, speculative or conclusory, are insufficient to show a “probability” that the plaintiff will prevail. (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 26.)

1. Defamation

“The elements of a defamation cause of action are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage. [Citation.]” (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1369 (Wong).) The question of whether the challenged statements convey the requisite factual imputation is ordinarily a question of law for the court. (Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1608.) But some statements are ambiguous and cannot be characterized as factual or nonfactual as a matter of law. (Ibid.) Under these circumstances, it is for the jury to determine whether an ordinary reader would have understood the statements as a factual assertion. (Ibid.)

The court disagrees with Vo’s argument that all of the alleged defamatory statements are “hyperbolic opinion.” (MPA, pp. 10:24-12:19.) “The sine qua non of recovery for defamation . . . is the existence of falsehood. Because the statement must contain a provable falsehood, courts distinguish between statements of facts and statements of opinion for purposes of defamation liability. Although statements of fact may be actionable as [defamatory], statements of opinion are constitutionally protected.” (McGarry v.

University of San Diego (2007) 154 Cal.App.4th 97, 112, internal citations and quotation marks omitted.) “The critical question is not whether a statement is fact or opinion, but whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact.” (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1370, internal citations and quotations omitted.)

Here, the FAC alleges that, among other statements, Vo stated “Diep is paying Google big big $$$ so the SEO . . .” (FAC, ¶ 25; see also MPA, p. 2:20.) This statement is reasonably susceptible to a defamatory interpretation and cannot be characterized as “mere opinion” as a matter of law. Whether Diep paid Google to ensure that the “reality” of his work did not get displayed on the internet could potentially be a provably false assertion of fact. Moreover, Diep has submitted evidence to the court that Vo “published” this statement and Diep has never paid Google “big big $$$” to ensure that Diep’s work “does not get displayed.” (Declaration of John Diep in Support of Opposition to Vo’s Anti-SLAPP Motion, ¶ 13 (“Diep Decl.” or “Diep Declaration”); Declaration of Bonnie Ross in Support of Opposition to Anti-SLAPP Motion, Ex.

G; Declaration of Alexander Sappington in Support of Opposition to Anti-SLAPP Motion, ¶¶ 2- 14 [“Page Vault provided Captures of relevant content for our client, Bonnie Margaret Ross, and provided both the PDF and html files of each Capture. . . .”].) Such allegations and evidence are sufficient to establish the elements of a falsity, contrary to Plaintiffs’ arguments otherwise.

The court turns to the issue of damages. Slander and libel are two types of defamation. (See Civ. Code, § 44.) Slander is a false and unprivileged publication, orally uttered, which: (1) charges any person with crime, or with having been indicted, convicted, or punished for crime; (2) imputes in any person the present existence of an infectious, contagious, or loathsome disease; (3) tends directly to injure a person in respect to their office, profession, trade or business, either by imputing to them general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to their office, profession, trade, or business that has a natural tendency to lessen its profits; (4) imputes impotence or a want of chastity; or (5) which, by natural consequence, causes actual damage. (Civ.

Code, § 46.) “A slander that falls within the first four subdivisions of Civil Code section 46 is slander per se and requires no proof of actual damages. A slander that does not fit into those first four subdivisions is slander per quod, and special damages are required for there to be any recovery for that slander.” (Regalia v. Nethercutt Collection (2009) 172 Cal.App.4th 361, 367, internal citations omitted.)

The court disagrees with Vo that each of the statements allegedly made by Vo constitute defamation “per quod.” For example, the court finds that the statement “Diep is paying Google big big $$$ so the SEO . . .” qualifies as libelous on its face. (FAC, ¶ 25; see Civ. Code § 45a [“A libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact, is said to be a libel on its face. Defamatory language not libelous on its face is not actionable unless the plaintiff alleges and proves that he has suffered special damages as a proximate result thereof.

Special damages are defined in Section 48a of this code.”].) Plaintiffs do not need to prove actual damages to support such a claim. (See Contento v. Mitchell (1972) 28 Cal.App.3d 356, 358 [“[I]t is equally well-settled that in an action for damages based on language defamatory per se, damage to plaintiff’s reputation is conclusively presumed and he need not introduce any evidence of actual damages in order to obtain or sustain an award of damages.”].)

The court DENIES Vo’s special motion to strike the FAC’s first cause of action for defamation.

2. Trade Libel

“Trade libel is the publication of matter disparaging the quality of another’s property, which the publisher should recognize is likely to cause pecuniary loss to the owner. The tort encompasses all false statements concerning the quality of services or product of a business which are intended to cause that business financial harm and in fact do so. To constitute trade libel, a statement must be false.” (City of Costa Mesa v. D’Alessio Investments, LLC (2013) 214 Cal.App.4th 358, 376, internal citations and quotation marks omitted.)

Unlike “a claim for defamation, trade libel requires as an essential element that the plaintiff suffered direct financial harm because someone else acted in reliance on the defendant’s statement. To establish this element, is [sic] not enough to show a general decline in [plaintiff’s] business resulting from the falsehood, even where no other cause for it is apparent, . . . it is only the loss of specific sales that can be recovered. This means, in the usual case, that the plaintiff must identify the particular purchasers who have refrained from dealing with him, and specify the transactions of which he

claims to have been deprived.” (Muddy Waters, LLC v. Superior Court (2021) 62 Cal.App.5th 905, 925 (Muddy Waters), internal citations and quotation marks omitted.)

Plaintiffs have not submitted to the court any evidence showing that they have suffered a specific loss as a result of any alleged statement made by Vo. Instead, the Diep Declaration identifies a reduced number of patient visits and states generally that “a number of our patients informed us that they cancelled their planned procedures with the clinic . . .” (Diep Decl., ¶¶ 70- 73.) For this reason, the court finds that Plaintiffs have failed to establish a probability of prevailing on the FAC’s trade libel cause of action. (See Muddy Waters, supra, 62 Cal.App.5th at p. 925-926 [“Thus, the existence of a specific customer or business entity that refrained from dealing with plaintiff as a result of reliance on the Dupré Reports is an essential factual element of plaintiff’s cause of action for trade libel.

Plaintiff has not directed us to any evidence in the record identifying any such customer or other business entity, let alone any specific contract or sale that it claims was lost as a result of the Dupré Reports.”].)

The court GRANTS Vo’s special motion to strike the FAC’s second cause of action for trade libel.

3. Intentional Interference with Prospective Relations

“The elements of intentional interference with prospective economic advantage are: ‘(1) the existence, between the plaintiff and some third party, of an economic relationship that contains the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentionally wrongful acts designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm proximately caused by the defendant’s action.” (Golden Gate Land Holdings, LLC v.

Direct Action Everywhere (2022) 81 Cal.App.5th 82, 91, internal citation and quotation marks omitted.) “[A] plaintiff that wishes to state a cause of action for [intentional interference with prospective economic advantage] must allege the existence of an economic relationship with some third party that contains the probability of future economic benefit to the plaintiff. An actual economic relationship with a third party is required, and liability cannot be premised on the more speculative expectation that a potentially beneficial relationship will arise in the future.” (Muddy Waters, supra, 62 Cal.App.5th at p. 926, internal citations and quotation marks omitted.)

Here, Plaintiffs do not direct the court to any evidence identifying a specific third party with whom Plaintiffs had an existing economic relationship. (Muddy Waters, supra, 62 Cal.App.5th at pp. 926-927 [“Here, none of the evidence submitted by plaintiff identified a specific third party with whom plaintiff had an existing economic relationship, let alone a relationship that had the probability of future economic benefit. . . . [I]n the context of a special motion to strike, once Muddy Waters established that the plaintiff’s claims arose from protected activity under section 425.16, the burden shifted to plaintiff to produce evidence to show a probability of prevailing on the merits. Therefore, it was incumbent on plaintiff to produce evidence to show a specific economic relationship with the prospect of future economic advantage. . . .”].)

For this reason, the court GRANTS Vo’s special motion to strike the FAC’s third cause of action for intentional interference with prospective relations.

4. Negligent Interference with Prospective Relations

“The tort of negligent interference with prospective economic advantage is established where a plaintiff demonstrates that (1) an economic relationship existed between the plaintiff and a third party which contained a reasonably probable future economic benefit or advantage to plaintiff; (2) the defendant knew of the existence of the relationship and was aware or should have been aware that if it did not act with due care its actions would interfere with this relationship and cause plaintiff to lose in whole or in part the probable future economic benefit or advantage of the relationship; (3) the defendant was negligent; and (4) such negligence caused damage to plaintiff in that the relationship was actually interfered with or disrupted and plaintiff lost in whole or in part the economic benefits or advantage reasonably expected from the relationship.” (North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 786 (North American Chemical), internal citation omitted.)

Similar to a cause of action for intentional interference with prospective relations, negligent interference with prospective relations requires “an economic relationship” that “existed between the plaintiff and a third party which contained a reasonably probable future economic benefit or advantage to plaintiff.” (North American Chemical, supra, 59 Cal.App.4th at p. 786.) Similarly, then, “liability cannot be premised on the more speculative expectation that a potentially beneficial relationship will arise in the future.” (Muddy Waters, supra, 62 Cal.App.5th at p. 926.) Again, the court notes that Plaintiffs do not identify in the evidence submitted to the court a specific third party with whom Plaintiffs had an existing economic relationship.

The court GRANTS Vo’s special motion to strike the FAC’s fourth cause of action for negligent interference with prospective relations.

5. Intentional Infliction of Emotional Distress

“A cause of action for intentional infliction of emotional distress exists when there is (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. A defendant’s conduct is outrageous when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community.

And the defendant’s conduct must be intended to inflict injury or engaged in with the realization that injury will result. Liability for intentional infliction of emotional distress does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. . . . . With respect to the requirement that the plaintiff show emotional distress, this court has set a high bar. Severe emotional distress means emotional distress of such a substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” (Hughes v.

Pair (2009) 46 Cal.4th 1035, 1050-1051 (Hughes), internal quotations and citations omitted,

disapproved on another ground in Wawrzenski v. United Airlines, Inc. (2024) 106 Cal.App.5th 663, 699.)

“[T]he trial court initially determines whether a defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery. Where reasonable men can differ, the jury determines whether the conduct has been extreme and outrageous to result in liability. Otherwise stated, the court determines whether severe emotional distress can be found; the jury determines whether on the evidence it has, in fact, existed.” (Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1614, internal citation and quotation marks omitted.)

Vo’s allegedly defamatory statements, which appear to form the basis for the FAC’s intentional infliction of emotional distress cause of action, do not show extreme and outrageous conduct. (FAC, ¶¶ 99-107.) The court reiterates that liability “for intentional infliction of emotional distress does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” (Hughes, supra, 46 Cal.4th at p. 1051.) Plaintiffs have not met their burden on this cause of action.

The court GRANTS Vo’s special motion to strike the FAC’s fifth cause of action for intentional infliction of emotional distress.

6. California’s Unfair Competition Law (“UCL”)

“A UCL action is an equitable action by means of which a plaintiff may recover money or property obtained from the plaintiff or persons represented by the plaintiff through unfair or unlawful business practices. It is not an all-purpose substitute for a tort or contract action.” (Muddy Waters, supra, 62 Cal.App.5th at p. 922, internal citation and quotation marks omitted.) “[O]nly plaintiffs who have suffered actual damage may pursue a private UCL action. A private plaintiff must make a twofold showing: he or she must demonstrate injury in fact and a loss of money or property caused by unfair competition.” (Ibid., internal quotation marks and citation omitted, emphasis original.)

Similar to the court’s reasoning for granting Vo’s anti-SLAPP motion as to the FAC’s third and fourth causes of action, Plaintiffs direct the court to no specific evidence substantiating the damages allegations underlying the FAC’s UCL allegations or Diep’s statement in his declaration that as a result of Vo’s conduct, Diep has “lost more than $9.5 million.” (FAC, ¶¶ 108-113; Diep Decl., ¶ 73; see Muddy Waters, supra, 62 Cal.App.5th at pp. 923-924 [“Here, nothing in the record suggests that plaintiff has lost money or property such that it would have standing to pursue a UCL action against Muddy Waters.

While the complaint alleged that aluminum pallets were detained by the United States as a result of the allegations made in the Dupré Reports, plaintiff failed to produce any evidence to support this allegation when called to do so in opposition to the special motion to strike. . . . Nor has plaintiff suggested, let alone produced, any evidence of any other money or property lost . . .”].) Furthermore, the court agrees with Vo’s point that much of the evidence discussed in paragraphs 70 through 72 of the Diep Declaration constitutes hearsay. (See Reply in Support of Anti-SLAPP Motion, p. 9:9-15; People v.

Flinner (2020) 10 Cal.5th 686, 735 [“Hearsay is an out-of-court statement offered for the truth of the matter asserted and is generally inadmissible.”].) For example, the Diep

Declaration states that prospective “patients who had consultations have told us that they decided not to book surgeries after seeing Phu Vo’s negative comments.” (Diep Decl., ¶ 70; see also id. at ¶ 71 [“A number of prospective hair transplant patients have stated on the hair transplant forums that, as a result of Mr. Vo’s disparagement of me and my clinic, they decided not to have hair transplant procedures done at my clinic.”].)

The court GRANTS Vo’s special motion to strike the FAC’s sixth cause of action.

II. Attorney’s Fees

The “prevailing defendant” on a motion to strike “shall be entitled” to recover their attorney fees and costs. (Code Civ. Proc., § 425.16, subd. (c).) Any “SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) A defendant’s lack of success on some claims or causes of action is relevant to the amount of, but not the right to, fees. (Jackson v. Yarbray (2009) 179 Cal.App.4th 75, 92.) Because Vo’s motion was granted in part, Vo may be entitled to recover fees and costs associated with bringing the motion, but because the motion is not accompanied by any declaration regarding fees and costs, the court will reserve on the issue until such time as it is adequately presented to the court (if the parties elect to do so).

III.

Conclusion

The court GRANTS Vo’s special motion to strike the FAC’s second, third, fourth, fifth, and sixth causes of action. The court DENIES Vo’s special motion to strike the FAC’s first cause of action.

SO ORDERED.

Date: June 26, 2026 Hon. Lori E. Pegg Superior Court of the State of California, County of Santa Clara

Line 4 Case Name: Terry Kwong, et al. v. Elaine Yang, et al.