Creekside Endodontics v. Kathryn Sullivan ( 2022 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
December 22, 2022
2022COA145No. 21CA1615, Creekside v Sullivan — Torts — Defamation;
Courts and Court Procedure — Regulation of Actions and
Proceedings — Action Involving Exercise of Constitutional
Rights — Anti-SLAPP — Special Motion to Dismiss
In this anti-SLAPP case, a division of the court of appeals
applies the heightened evidentiary burden articulated in L.S.S. v.
S.A.P., 2022 COA 123, ¶ 41. In so doing, the division concludes
that because Plaintiffs failed to produce clear and convincing
evidence that Defendant’s communications were made with actual
malice, and since the remainder of her communications were
nonactionable as a matter of law, the district court erred in denying
Defendant’s special motion to dismiss filed pursuant to section 13-
21-1101(3)(a), C.R.S. 2022. We further determine that, on remand,
the district court must enter an award of attorney fees and costs for
Defendant consistent with section 13-21-1101(4)(a), C.R.S. 2022.
COLORADO COURT OF APPEALS 2022COA145Court of Appeals No. 21CA1615
Saguache County District Court No. 20CV30024
Honorable Crista Newmyer-Olsen, Judge
Creekside Endodontics, LLC, and Andrew Stubbs,
Plaintiffs-Appellees,
v.
Kathryn Sullivan,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division III
Opinion by JUDGE FOX
Tow, J., concurs
Yun, J., specially concurs
Announced December 22, 2022
Gelman & Norberg LLC, Weston Cole, Greenwood Village, Colorado, for
Plaintiffs-Appellees
Ballard Spahr LLP, Ashley I. Kissinger, Denver, Colorado; Ballard Spahr LLP,
Lauren Russell, Washington, D.C., for Defendant-Appellant
¶1 Defendant, Kathryn Sullivan, appeals the district court’s
denial of her special motion to dismiss defamation claims brought
against her by Creekside Endodontics, LLC, and Andrew Stubbs
(collectively, Plaintiffs). Sullivan sought dismissal under Colorado’s
recently enacted anti-SLAPP statute.1 See § 13-20-1101(3)(a),
C.R.S. 2022.
¶2 Because we conclude there is not a reasonable likelihood that
Plaintiffs will prevail on their defamation claims, we reverse and
remand with directions to dismiss the complaint and award
Sullivan attorney fees and costs pursuant to section 13-20-
1101(4)(a).
I. Factual Background
¶3 Dr. Stubbs, a licensed dentist, is the owner and sole member
of Creekside Endodontics. Sullivan was his patient. After Dr.
Stubbs performed root canal therapy on Sullivan, she was
dissatisfied with the procedures and publicly expressed her
dissatisfaction.
1“SLAPP” is an acronym for “strategic lawsuits against public
participation.”
1
¶4 In early July 2019, Sullivan came to Creekside Endodontics
complaining of severe pain in four teeth — specifically, teeth
numbers 3, 5, 6, and 13. After examining her, Dr. Stubbs
determined that the four affected teeth required treatment and that
a metal file was embedded in tooth number 3 (apparently from
shoddy dental work performed by another dentist). Dr. Stubbs
advised Sullivan that she had three options: (1) do nothing, (2)
undergo root canal therapy, or (3) have the teeth extracted.
Sullivan elected to proceed with root canal therapy.
¶5 Over the span of several appointments between July 22 and
August 5, Dr. Stubbs completed root canal therapy on the four
teeth. While treating Sullivan, Dr. Stubbs discovered that teeth
numbers 3 and 13 were fractured. He informed her of this
discovery and explained that this reduced the likelihood of a
successful treatment for the affected teeth; she chose to proceed
with the surgery.2
¶6 Within days, Sullivan emailed Dr. Stubbs complaining of
persistent pain in tooth number 3. Dr. Stubbs prescribed pain
2 Sullivan claims she was only informed that tooth 3 was fractured.
2
medication, steroids, and antibiotics to mitigate the pain. Soon
after, Sullivan posted a positive review on Yelp of Creekside
Endodontics and Dr. Stubbs.
¶7 But Sullivan’s pain soon returned. Acting as her own
advocate, Sullivan began conducting independent research on root
canal therapy. As part of this research, she emailed Dr. Franklin
Pineda on August 22 with copies of the x-rays Dr. Stubbs had taken
and described experiencing severe pain.3 Dr. Pineda concluded that
(1) dental filling material extended beyond the roots (i.e., the tip) of
teeth numbers 5, 6, and 13; and (2) the roots of teeth numbers 5
and 13 were in close proximity to one of her sinuses. He opined
that the overfilling — especially in the two teeth close to the sinus
— could be causing her pain.
¶8 Armed with this information, Sullivan contacted Dr. Stubbs,
told him that she was experiencing intense pain, and asked whether
an “overfilling” of her root canals could be the cause. During the
ensuing email exchange — from August 23 through September 4 —
3Dr. Pineda is an endodontist educated and licensed in Mexico.
He held a postgraduate teaching position in endodontics at the
University of Washington and is an affiliate member of the
American Endodontic Association.
3
Dr. Stubbs persistently denied that overfilling occurred and stated
that, even if the canals were overfilled, it was not the cause of her
pain. He repeatedly offered to re-examine her.
¶9 Meanwhile, Sullivan continued her research. To that end, she
posted a comment on Denver Dental Peeps (a dental-focused
Facebook group) on August 25, in which she claimed that her
“sister” had undergone root canal therapy but was still in severe
pain. She included the x-rays Dr. Stubbs had taken and floated the
possibility that the pain was caused by overfilling of the canals.
Several posts disagreed with this diagnosis, commenting that the
root canals looked good, the fillings within normal limits, and the
pain may be attributable to underlying fractures in the teeth. With
the exception of one commenter (who identified herself as a dental
assistant), the commentators did not indicate their credentials.
¶ 10 Owing to her continued pain, Sullivan returned to Dr. Stubbs’
office for a follow-up examination on September 5. Dr. Stubbs
performed cone-beam computed tomography (CBCT) scans —
essentially a three-dimensional x-ray — on each tooth he had
treated. After reviewing the images, Dr. Stubbs discovered that
teeth numbers 5 and 6 were overfilled, and that gutta percha (a
4
thermoplastic filling that is heated and compressed into the tooth’s
canal) extended one millimeter beyond the tip of tooth number 13.
He also learned that he had missed a canal on tooth number 3. Dr.
Stubbs uploaded these CBCT images onto a CD and gave it to
Sullivan.
¶ 11 Although Dr. Stubbs filled the remaining canal on tooth
number 3, Sullivan’s pain persisted. As she had in late August,
Sullivan continued to ask Dr. Stubbs whether the overfilling was
the cause of her pain — a theory that he persistently rejected.
Instead, Dr. Stubbs advised her to see a neurologist.
¶ 12 On September 19, a week after treating tooth number 3, Dr.
Stubbs terminated his doctor-patient relationship with Sullivan —
citing her “adversarial” behavior — and denied her request for a full
refund. In response, Sullivan said, “[Y]ou want to escape
community accountability. Okay, but it is your reputation on the
line.”
¶ 13 In early October, Sullivan temporarily relocated to Florida to
live with family. On October 15, 2019, she saw a dentist in Florida,
5
Dr. Carlo Litano.4 Dr. Litano took new CBCT scans because he was
unable to view the ones on Dr. Stubbs’ CD. Based on his analysis
of these images, Dr. Litano concluded that teeth numbers 5, 6, and
13 were overfilled, that number 13 had material extruding near the
sinus, and that there were multiple infections near these locations.
¶ 14 After leaving Dr. Litano’s office, Sullivan went directly to
another dentist, Dr. Paul Rodeghero.5 She showed Dr. Rodeghero
her images and he agreed that, at a minimum, tooth number 5
needed to be removed. Sullivan scheduled to have that tooth
extracted on October 25.
¶ 15 The next day, she emailed Dr. Stubbs screenshots of the scans
Dr. Litano had taken and explained that her in-person
consultations with other dentists proved that the overfilling was
worse than she originally thought. Dr. Stubbs reiterated his
disagreement that her pain was caused by overfilling.
4 Dr. Litano is a dentist educated and licensed in Florida.
According to his declaration, he focuses his practice on “biological
and integrative dentistry.”
5 Although Dr. Rodeghero did not provide a declaration reciting his
professional credentials, the record shows he is a licensed dentist.
6
¶ 16 On October 17, 2019, Sullivan posted a one-star review on
Creekside Endodontics’ Yelp page accompanied by the following
text:
On the surface, it is a very professional office
staff. Unfortunately, the work done is sub par
and below the standard of care. Dr. Stubbs
overfilled 3 out of 4 of my root canals causing
great pain and the need for surgery or surgical
extraction. He has refused all accountability
and tried to send me to a neurologist rather
[than] rectify the damage. Overfilling is in my
sinus and has caused me pain for nearly three
months now. When I confronted Dr. Stubbs
about it, he fired me from the practice.
Radiographic evidence attached. Overfilling
has been confirmed by several endodontists
and dentists and is very obvious even to a lay
persons [sic] eyes.
Sullivan attached screenshots of the images from Dr. Litano and Dr.
Stubbs.
¶ 17 To Sullivan’s disappointment, her post was soon categorized
as a “not currently recommended” review, and thus not readily
viewable by Yelp users. Undeterred, she tried again, posting
another one-star review about Dr. Stubbs on October 21, 2019,
(without reference to Creekside Endodontics):
Root canals significantly overfilled causing
sinus perforation and pain that effects [sic]
teeth/nose/sinus/eye from the moment they
7
were obturated. Dr. Stubbs refuses to rectify
or be accountable for the harm he has caused!
I have uploaded radiographic evidence and
photos.
Sullivan attached screenshots of Dr. Litano’s images with the
review.
¶ 18 Because she was still in pain, Sullivan proceeded to have Dr.
Rodeghero remove tooth number 5 on October 25, 2019. After
surgery, Dr. Rodeghero provided physical confirmation of Sullivan’s
theory that excess sealer was coming out of tooth number 5, that
the tooth was infected, and that tooth number 6 was also overfilled
(an observation made possible by virtue of it being next to removed
tooth number 5).
¶ 19 Shortly after her appointment with Dr. Rodeghero, Sullivan
posted her third and final one-star review (this time on Google) of
Creekside Endodontics:
3 of the 4 root canals Dr. Stubbs did are
significantly overfilled causing major pain in
the teeth/ sinus/ eyes/ neck/shoulders from
the moment they were obturated. I suffered
for over a month before another endodontist
alerted me that they were overfilled. Dr.
Stubbs ignored my pain and then completely
denied that overfilling causes pain. Any
foreign material in the body CAUSES PAIN!!
8
He tried to gaslight me to escape
accountability for the harm he did! He also
actively tried to hide the overfilled when taking
a CT scan and gave me blank CDs. I took a CT
at TWO other offices and the overfills are even
worse [than] I imagined. I have had one of the
three teeth extracted already and there is still
gutta percha and sealer left in the bone
requiring additional surgical removal. The
tooth had gutta percha sticking out of it and
into the gum which caused a massive infection
leading to bone being completely destroyed on
one side. I have two more teeth to extract
because of his damage. These are not
straightforward extractions due to the foreign
material he left. One of the teeth has gutta
percha in the sinus.
SHAME ON YOU FOR NOT LISTENING TO ME
AND DENYING MY PAIN, DR STUBBS! YOU
HAVE CAUSED MAJOR DAMAGE AND HAVE
DONE NOTHING TO RECTIFY IT!
¶ 20 Plaintiffs sued Sullivan for libel per se and trade and product
disparagement based on the allegedly defamatory posts. Sullivan
filed a special motion to dismiss, relying on section 13-20-
1101(3)(a), which the court denied.6
6 This was the third special motion to dismiss that Sullivan filed in
this lawsuit. She filed the first pro se, the second after obtaining
counsel (who amended the first), and the third after the district
court denied her second motion and granted Plaintiffs leave to
amend their complaint.
9
II. Applicable Law and Standard of Review
¶ 21 Colorado’s anti-SLAPP statute seeks to minimize the risk of
nonmeritorious lawsuits being used to silence another based on
their exercise of First Amendment rights. § 13-20-1101(1)(a); L.S.S.
v. S.A.P., 2022 COA 123, ¶¶ 14-17. It thus aims to balance the
“constitutional rights of persons to petition, speak freely, associate
freely, and otherwise participate in government” with the “rights of
persons to file meritorious lawsuits for demonstrable injury.” § 13-
20-1101(1)(b); Salazar v. Pub. Tr. Inst., 2022 COA 109M, ¶¶ 11-12.
¶ 22 To that end, the statute creates a procedural mechanism that
allows a district court to assess a lawsuit at its early stages and
determine whether it is nonmeritorious (the idea being to weed out
lawsuits that are not being used to address a legal injury, but
instead seek to dissuade another from exercising their First
Amendment rights). See Andrew L. Roth, Comment, Upping the
Ante: Rethinking Anti-SLAPP Laws in the Age of the Internet, 2016
BYU L. Rev. 741, 745-48 (2016) (describing the theoretical
underpinnings of SLAPP lawsuits).
¶ 23 As another division of this court cogently described,
10
The statute allows a person (usually a
defendant) to file a special motion to dismiss
“[a] cause of action against a person arising
from any act of that person in furtherance of
the person’s right of petition or free speech
under the United States constitution or the
state constitution in connection with a public
issue.” § 13-20-1101(3)(a). The trial court
then “consider[s] the pleadings and supporting
and opposing affidavits” to determine whether
“the plaintiff has established that there is a
reasonable likelihood that the plaintiff will
prevail on the claim.” § 13-20-1101(3)(a)-(b).
L.S.S., ¶ 18 (emphasis added). If the court determines there is not a
reasonable likelihood that the plaintiff will prevail on her claim, it
must grant the motion and award the defendant attorney fees and
costs.7 § 13-20-1101(3)(a), (4)(a).
¶ 24 We review de novo a district court’s ruling on a special motion
to dismiss to determine whether the plaintiff has established a
“reasonable likelihood” that she will prevail on her claim. Salazar,
¶ 21.
7There is one exception to this rule: a prevailing party is not
entitled to attorney fees and costs “if that cause of action is brought
pursuant to part 4 of article 6 of title 24 or the ‘Colorado Open
Records Act’, part 2 of article 72 of title 24.” § 13-20-1101(4)(b),
C.R.S. 2022.
11
¶ 25 This entails a two-step process. First, we consider “whether
the defendant has made a threshold showing that the conduct
underlying the plaintiff’s claim falls within the scope of the anti-
SLAPP statute — that is, that the claim arises from an act ‘in
furtherance of the [defendant’s] right of petition or free speech . . .
in connection with a public issue.’” L.S.S., ¶ 21 (quoting § 13-20-
1101(3)(a)). If so, the court evaluates whether the plaintiff has
established a “reasonable likelihood [of] prevail[ing] on the claim.”
Id. at ¶ 22 (quoting § 13-20-1101(3)(a)-(b)).
¶ 26 For this second step, we review “the pleadings and the
evidence to determine ‘whether the plaintiff has stated a legally
sufficient claim and made a prima facie factual showing sufficient to
sustain a favorable judgment.’” Id. at ¶ 23 (quoting Baral v. Schnitt,
376 P.3d 604, 608 (Cal. 2016)). In so doing, “[t]he court does not
weigh evidence or resolve conflicting factual claims” but simply
“accepts the plaintiff’s evidence as true, and evaluates the
defendant’s showing only to determine if it defeats the plaintiff’s
claim as a matter of law.” Id. at ¶¶ 23-24 (quoting Baral, 376 P.3d
at 608).
12
III. Discussion
A. Step One: Protected Activity
¶ 27 The district court concluded that Sullivan’s reviews were made
“in connection with a public issue” and are therefore subject to
section 13-20-1101(3)(a). This determination matters because if
Sullivan’s communications were made in connection with a public
issue, then Plaintiffs’ must prove, at trial, that she made the
statements with actual malice (and, as we explain below, establish a
reasonable likelihood that they will be able do so at the special
motion to dismiss stage). See L.S.S., ¶¶ 36-37.
¶ 28 Plaintiffs initially argued that Sullivan’s statements related to
a matter of “purely private concern” and were thus outside the
scope of the anti-SLAPP statute. But they did not submit argument
on this issue in their appellate briefs. And while their counsel
asserted during oral argument that the statements were a matter of
private concern, we will not consider this contention because of
their failure to develop this argument in their briefs. See Barnett v.
Elite Props. of Am., Inc., 252 P.3d 14, 19 (Colo. App. 2010) (“We will
not consider a bald legal proposition without argument or
development. Counsel must inform the court both as to the specific
13
errors asserted and the grounds, supporting facts, and authorities
to support their contention.”) (citation omitted); see also Galvan v.
People, 2020 CO 82, ¶ 45 (discussing party presentation principle).
¶ 29 We therefore assume, without deciding, that Sullivan’s reviews
were made “in connection with a public issue.” § 13-20-1101(3)(a);
see L.S.S., ¶ 28 (declining to decide whether an act was made “in
connection with a public issue” because the parties agreed that it
was).
B. Step Two: Reasonable Likelihood
¶ 30 The parties disagree over the meaning of “reasonable
likelihood” in this specific context — namely, where the defamatory
statements involve a matter of public concern. Plaintiffs urge us to
adopt the district court’s reasoning; under that rubric, we must
deny a special motion to dismiss if Plaintiffs’ claim has “‘minimal
merit’ and . . . there is a ‘reasonable likelihood’ they will prevail.”
Sullivan, by contrast, argues that Plaintiffs must show, by clear and
convincing evidence, that they have a reasonable likelihood of
prevailing at trial.
¶ 31 Another division of this court addressed this precise issue in
L.S.S. Drawing on California cases interpreting a substantively
14
identical anti-SLAPP statute, Colorado cases applying the clear and
convincing standard at summary judgment, and a balancing of the
interests implicated by the statute, the division concluded that the
heightened standard applied. L.S.S., ¶¶ 42-44. Accordingly, it held
that
in order to withstand a special motion to
dismiss where a showing of actual malice will
be required at trial, a plaintiff must establish a
probability that they will be able to produce
clear and convincing evidence of actual malice
at trial.
Id. at ¶ 41.
¶ 32 We agree with the reasoning and holding of the L.S.S. division
and therefore adopt its reasoning.
¶ 33 With that burden in mind, we now analyze whether Plaintiffs
established a probability that they will be able to produce clear and
convincing evidence of actual malice at trial. We conclude that
Plaintiffs failed to meet this burden with respect to Sullivan’s
actionable statements, and we further determine that the remainder
of her statements are not actionable.
15
1. Defamation: General Principles
¶ 34 Defamation is a communication that holds an individual up to
contempt or ridicule, causing them injury or damage. Keohane v.
Stewart, 882 P.2d 1293, 1297 (Colo. 1994). The elements are:
(1) a defamatory statement concerning
another; (2) published to a third party; (3) with
fault amounting to at least negligence on the
part of the publisher; and (4) either
actionability of the statement irrespective of
special damages or the existence of special
damages to the plaintiff caused by the
publication.
Lawson v. Stow, 2014 COA 26, ¶ 15 (quoting Williams v. Dist. Ct.,
866 P.2d 908, 911 n.4 (Colo. 1993)).
¶ 35 The party claiming defamation, however, is subject to a
heightened burden of proof when the challenged statement relates
to a matter of “public concern.” Id. at ¶ 18; see also Lewis v.
McGraw-Hill Broad. Co., 832 P.2d 1118, 1121 (Colo. App. 1992) (“[A]
defamatory statement addresses a matter of public concern
whenever it embraces an issue about which information is needed
or is appropriate.”). As relevant here, the plaintiff must prove, by
clear and convincing evidence, that the speaker made the
statements with “actual malice.” Lawson, ¶ 18.
16
¶ 36 In contrast to the preponderance of evidence standard —
which only requires proof that a fact is “more probable” than not,
Page v. Clark, 197 Colo. 306, 318, 592 P.2d 792, 800 (1979)
(quoting Charles T. McCormick, The Law of Evidence § 339 (2nd ed.
1972)) — the clear and convincing standard requires proof that a
fact is “highly probable and free from serious or substantial doubt.”
Destination Maternity v. Burren, 2020 CO 41, ¶ 10 (citation omitted).
¶ 37 A communication is made with actual malice if it is published
with “actual knowledge that it was false” or “with reckless disregard
for whether it was true.” L.S.S., ¶ 40. To be sure, it is rare for there
to be evidence that the speaker knew their statement was false yet
published it anyway. See, e.g., Burns v. McGraw-Hill Broad. Co.,
659 P.2d 1351, 1361-62 (Colo. 1983) (where speaker in fact “knew”
that the statements were false). Our inquiry therefore typically
turns on whether the publisher made the statement with “reckless
disregard.”
¶ 38 Thus, actual malice is proved by evidence that the publisher
“entertained serious doubts as to the truth of the statement or
acted with a high degree of awareness of its probable falsity.” Fry v.
Lee, 2013 COA 100, ¶ 21. Unless it is “grossly inadequate,” an
17
investigation by a layperson that forms the basis of a defamatory
statement is insufficient to show actual malice. Reddick v. Craig,
719 P.2d 340, 342 (Colo. App. 1985). Similarly, a speaker’s “failure
to corroborate information received from [an otherwise] reliable
source” — which later turns out to be incorrect — does not
establish actual malice. Lewis, 832 P.2d at 1124. Nor does
evidence that the defamed party simply denied the veracity of the
speaker’s statement show actual malice. Seible v. Denver Post
Corp., 782 P.2d 805, 809 (Colo. App. 1989); accord DiLeo v.
Koltnow, 200 Colo. 119, 126-27, 613 P.2d 318, 324 (1980)
(concluding actual malice was not proved because the “defendants’
sources were reliable, and a thorough independent investigation
was conducted to substantiate the truthfulness of the statements”).
¶ 39 Although a speaker’s ill will toward the defamed party is not
an element of actual malice, evidence of such bad motive “may
serve as circumstantial evidence of actual malice ‘to the extent that
it reflects on the subjective attitude of the publisher.’” L.S.S., ¶ 40
(quoting Balla v. Hall, 273 Cal. Rptr. 3d 695, 683 (Ct. App. 2021))
(collecting cases on this point).
18
2. Analysis
¶ 40 We begin by observing that Sullivan’s reviews contain two
types of statements: those that concern Dr. Stubbs’ alleged
overfilling (e.g., he overfilled the canals, this caused her pain, etc.)
and those that concern his reaction to her complaints (e.g., he
ignored her pain, he “gaslighted” her, etc.). We first address the
statements related to his dental work, before turning to those that
concern his handling of Sullivan’s dissatisfaction with that work.
a. Statements Related to Dental Work
¶ 41 Sullivan argued that she sincerely believed Dr. Stubbs
overfilled three of the four teeth he treated and that the overfilling
was the cause of her pain. As pertinent here, she supported her
position with (1) declarations of Dr. Pineda and Dr. Litano, and her
own declaration; (2) the patient notes Dr. Rodeghero took post-
surgery; and (3) all email communication between herself and Dr.
Stubbs.
¶ 42 Plaintiffs sought to prove actual malice with (1) Dr. Stubbs’
attestation, (2) an affidavit of a dental assistant who was involved in
Sullivan’s care, and (3) some of the same emails Sullivan provided.
19
¶ 43 We conclude that Plaintiffs cannot prove actual malice. As Dr.
Pineda, Dr. Litano, Dr. Rodeghero, and Dr. Stubbs himself
observed, teeth numbers 5 and 6 were, in fact, overfilled, and gutta
percha extended beyond the tip of tooth number 13. Whether
Sullivan made the statements with actual malice thus hinges on
whether she “entertained serious doubts” that this overfilling could
be the cause of her pain. Fry, ¶ 21.
¶ 44 But three dentists told Sullivan the overfilling could be the
cause of her pain, and she based her statements on these
professional opinions. Plaintiffs argue that, because one dentist
practices in Mexico and the other two practice nonmainstream
forms of dentistry, their professional opinions are inherently
unreliable. This argument fails because it does not explain why
their opinions are unreliable — let alone that Sullivan had serious
reason to doubt the accuracy of their diagnoses. See id. And even
if she was misguided in believing that overfilling was the cause of
her pain, there is no evidence that she doubted the opinions of the
dentists on whom she relied yet published the statements anyway.
See Lewis, 832 P.2d at 1124.
20
¶ 45 Her disregard of contrary opinions on the Dental Peeps thread
also does not show actual malice. The district court found that
Sullivan’s rejection of these viewpoints and later concession that
root canal therapy was an “inexact science” shows that she may
have made the statements with a reckless disregard for their truth.
This ignores that her consultation of the online thread was but one
small part of a two-month-long investigation. And even if Sullivan
incorrectly concluded that the overfilling caused her pain, it cannot
be said that her investigation was “grossly inadequate.” Reddick,
719 P.2d at 342. In the end, she chose to believe the opinions of
three dentists — two of whom examined her in person — with
credentials she trusted, rather than the Dental Peeps commenters
who opined, based on screenshots of the images, that Dr. Stubbs’
work appeared normal.
¶ 46 Similarly, Dr. Stubbs’ persistent disagreement that the
overfilling caused her pain is insufficient to establish actual malice.
Sullivan was not required to take Dr. Stubbs’ professional opinion
as conclusive fact over those of three other dentists she consulted.
His denial, in other words, is not evidence that she knew he was
21
probably correct yet proceeded regardless. See Seible, 782 P.2d at
809; DiLeo, 200 Colo. at 126-27, 613 P.2d at 324.
¶ 47 This case is quite unlike Harte-Hanks Communications, Inc. v.
Connaughton, 491 U.S. 657, 677-88 (1989), in which the Court
found actual malice after the speaker based its assertion on a
highly biased source, ignored evidence refuting that source, and
avoided talking to the only person who could corroborate that
source. Here, by contrast, Sullivan engaged in a lengthy
investigation, received conflicting viewpoints, and ultimately chose
to believe one professional opinion over another.
¶ 48 It could be argued that Sullivan’s ill will toward Dr. Stubbs
shows actual malice. After all, when Dr. Stubbs rejected her
request for a refund, Sullivan responded, “[Y]ou want to escape
community accountability. Okay, but it is your reputation on the
line.” While this ominous assertion tends to show bad motive, it is
not enough to establish a reasonable likelihood that Plaintiffs will
be able to prove, by clear and convincing evidence, that Sullivan
made the challenged statements with actual malice.
22
¶ 49 All told, Plaintiffs did not show a reasonable likelihood that
Sullivan made the statements related to Dr. Stubbs’ dental work
with actual malice.
b. Statements Addressing Sullivan’s Dissatisfaction
¶ 50 In addition to saying that Dr. Stubbs overfilled her teeth,
Sullivan also voiced various grievances about his response to her
complaints.
¶ 51 Statements of “pure opinion” are nonactionable under
defamation principles. Lawson, ¶¶ 18, 30. Thus, even if a
statement could be characterized as an opinion, it is only actionable
if “the underlying defamatory facts which provide a basis for the
opinion are false and are not disclosed in the context of the [broader
statement].” Burns, 659 P.2d at 1360.
¶ 52 Sullivan’s varied complaints stemmed from her frustration
with Dr. Stubbs’ refusal to accept her theory, his suggestion that
she consult a neurologist, and his eventual termination of their
doctor-patient relationship. Dr. Stubbs claims these statements
baselessly imply that he was a callous provider who ignored her
pain.
23
¶ 53 Although these assertions plainly cast Dr. Stubbs in a negative
light, they are nonactionable because the factual bases for them are
included in the reviews. Id. These factual bases include (1) that
other dentists told Sullivan her teeth were overfilled and causing
her pain; (2) that he suggested she see a neurologist rather than
provide further treatment of the subject teeth; (3) that she took two
additional CBCT scans because the other dentists could not view
the ones on Dr. Stubbs’ CD; (4) that he terminated their
relationship; and (5) the images themselves. Because Sullivan
provided the factual reasons for her opinion, her statements are
protected by the First Amendment. See Seible, 782 P.2d at 809-10(alleged defamatory statements nonactionable because factual
bases for opinions accompanied statements).
IV. Attorney Fees and Costs
¶ 54 Section 13-20-1101(4)(a) provides that “a prevailing defendant
on a special motion to dismiss is entitled to recover the defendant’s
attorney fees and costs.” Because we conclude that Plaintiffs did
not have, as a matter of law, a reasonable likelihood of prevailing on
24
their defamation claims, Sullivan is entitled to recover attorney fees
and costs.8
V. Conclusion
¶ 55 For the reasons stated, we reverse the judgment of the district
court denying Sullivan’s special motion to dismiss and remand with
directions to dismiss the complaint and award Sullivan attorney
fees and costs.
JUDGE TOW concurs.
JUDGE YUN specially concurs.
8 Because Plaintiffs’ trade and product disparagement claim rises
and falls with the defamation claim, it is also subject to dismissal.
See Williams v. Cont’l Airlines, Inc., 943 P.2d 10, 16 (Colo. App.
1996) (A plaintiff “may not avoid the strictures of defamation law by
artfully pleading their defamation claims to sound in other areas of
tort law.” (quoting Vackar v. Package Mach. Co., 841 F. Supp. 310,
315 (N.D. Cal. 1993))).
25
JUDGE YUN, specially concurring.
¶ 56 I respectfully concur in the judgment only.
¶ 57 The parties agree on appeal that Kathryn Sullivan’s Yelp and
Google reviews were made “in connection with a public issue,”
§ 13-20-1101(3)(a), C.R.S. 2022. Based on this concession1 and the
party presentation rule, I agree that the majority reached the
correct result. See Galvan v. People, 2020 CO 82, ¶ 45 (“Under our
adversarial system of justice, we adhere to the party presentation
principle, which relies on the parties to frame the issues to be
decided and assigns to courts the role of neutral arbiters of the
matters raised.”).
¶ 58 I write separately, however, because I am concerned that the
majority opinion could be construed as an endorsement that Yelp or
Google reviews discussing a business dispute between two private
parties is a matter of public concern for purposes of the First
Amendment. In my view, Sullivan’s online reviews describing a
1 Although the plaintiffs disagree as to whether the actual malice
standard applies at the special motion to dismiss stage,
§ 13-20-1101, C.R.S. 2022, they appear to concede in their briefing
that the standard would apply at trial.
26
dispute with a dentist about her root canal therapy do not rise to a
matter of public concern.
¶ 59 At common law, the tort of defamation exists to compensate
individuals who have suffered harm to their reputations due to the
careless or malicious communications of others. McIntyre v. Jones,
194 P.3d 519, 524 (Colo. App. 2008) (citing Keohane v. Stewart,
882 P.2d 1293, 1297 (Colo. 1994)). Protection of one’s reputation
“reflects no more than our basic concept of the essential dignity and
worth of every human being” and recognizes that once an
individual’s reputation is damaged, it is extremely difficult to
restore. Id. (quoting Keohane, 882 P.2d at 1297-98, in turn quoting
Rosenblatt v. Baer, 383 U.S. 75, 92 (1966) (Stewart, J., concurring)).
¶ 60 But the interest of protecting one’s reputation is not
paramount in all circumstances. Shoen v. Shoen, 2012 COA 207,
¶ 21. “It must be weighed against society’s interest in encouraging
and fostering vigorous public debate [on matters of public concern],
an interest protected by the First Amendment to the United States
Constitution and article II, section 10 of the Colorado Constitution.”
Id. (quoting McIntyre, 194 P.3d at 523-24). To account for this
important societal interest, the common law of defamation has been
27
modified in one significant way for certain classes of cases.
McIntyre, 194 P.3d at 524.
¶ 61 In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the
United States Supreme Court first recognized that the First
Amendment precludes a public official
from recovering damages for a defamatory
falsehood relating to his official conduct unless
he proves that the statement was made with
“actual malice” — that is, with knowledge that
it was false or with reckless disregard of
whether it was false or not.
Id. at 279-80.
¶ 62 The Supreme Court, however, refused to impose a federal
constitutional standard on defamatory statements made about
private individuals. Gertz v. Robert Welch, Inc., 418 U.S. 323,
348-49 (1974). Private individuals, the Court reasoned, were more
vulnerable to injury given their limited opportunities to counteract
false statements. Id. at 344-45. Unlike public officials, the Court
explained, private persons do not voluntarily expose themselves to
the increased risk of injury from defamatory falsehoods and are
therefore more deserving of recovery. Id. Thus, the Court held that
“so long as they do not impose liability without fault, the States may
28
define for themselves the appropriate standard of liability for a
publisher or broadcaster of defamatory falsehood injurious to a
private individual.” Id. at 347.
¶ 63 Following Gertz, the Colorado Supreme Court extended the
New York Times “actual malice” standard of liability to cases where
“a defamatory statement has been published concerning one who is
not a public official or a public figure, but the matter involved is of
public or general concern.” Walker v. Colo. Springs Sun, Inc.,
188 Colo. 86, 98, 538 P.2d 450, 457 (1975), overruled on other
grounds by Diversified Mgmt., Inc. v. Denver Post, Inc., 653 P.2d
1103 (Colo. 1982); see also Diversified Mgmt., 653 P.2d at 1106
(refining the “actual malice” standard of liability by “adopting the
same definition of ‘reckless disregard’ in cases involving public
officials, public figures, and matters of public or general concern”).
¶ 64 But Colorado law provides no clear guidelines for determining
whether a matter is of “public concern.” “Generally, a matter is of
public concern whenever ‘it embraces an issue about which
information is needed or is appropriate,’ or when ‘the public may
reasonably be expected to have a legitimate interest in what is being
published.’” Williams v. Cont’l Airlines, Inc., 943 P.2d 10, 17 (Colo.
29
App. 1996) (quoting Lewis v. McGraw-Hill Broad. Co., 832 P.2d
1118, 1121 (Colo. App. 1992)). Stated another way, public concern
“is something that is a subject of legitimate news interest; that is, a
subject of general interest and of value and concern to the public”
at the time of publication. Shoen, ¶ 25 (quoting City of San Diego v.
Roe, 543 U.S. 77, 83 (2004)). “[A] matter is of public concern when
‘it can be fairly considered as relating to any matter of political,
social, or other concern to the community . . . .” McIntyre, 194 P.3d
at 525 (quoting Barrett v. Univ. of Colo. Health Scis. Ctr., 851 P.2d
258, 263 (Colo. App. 1993)).
¶ 65 Conversely, Colorado courts have made it clear that private
disputes between private individuals are not matters of public
concern. See, e.g., People v. Ryan, 806 P.2d 935, 939 (Colo. 1991)
(“[I]t is inappropriate to require that defamatory false statements
must be made with ‘actual malice’ in situations, such as the
present case, where one private person disseminates defamatory
statements about another private individual in the victim’s
community.”); McIntyre, 194 P.3d 525-26 (statement concerning the
qualifications of an applicant for bookkeeper of small homeowners
association did not involve a matter of public concern); Sky Fun 1,
30
Inc. v. Schuttloffel, 8 P.3d 570, 575 (Colo. App. 2000) (statements by
a former employer to a prospective employer regarding a pilot’s
abilities did not involve a matter of public concern), aff’d in part and
rev’d in part on other grounds, 27 P.3d 361 (Colo. 2001); Williams,
943 P.2d at 18 (statements by a flight attendant that a pilot
attempted to rape her were not matters of public concern).
Although boundaries between a purely private matter and a matter
of public concern cannot be readily defined and must be determined
on a case-by-case basis, “the balance should be struck in favor of a
private plaintiff if his or her reputation has been injured by a
non-media defendant in a purely private context.” Williams,
943 P.2d at 18.2
¶ 66 In my view, Zueger v. Goss, 2014 COA 61, is instructive. The
widow of a renowned Native American artist had a dispute with the
2 Indeed, it is far from clear whether the boundary delineating
private and public matters in this context is, or should be, any
different than the boundary between private disputes and matters
“in connection with a public issue” sufficient to implicate the
protections of the anti-SLAPP statute in the first place. It is at least
arguable that if the nature of a particular dispute is not sufficiently
of public concern to warrant the constitutional protections of actual
malice, it is also not of sufficient public interest to warrant the
statutory protections of the anti-SLAPP statute.
31
plaintiffs, an art dealer and others who handled her deceased
husband’s artwork. Id. at ¶ 2. Believing that the plaintiffs were
making and selling unauthorized reproductions of his artwork, the
widow made disparaging statements on the internet about the
plaintiffs’ business activity. Id. The plaintiffs, in turn, sued the
widow for, among other things, intentional interference with
prospective business advantage and defamation. Id.
¶ 67 A division of this court held that the widow’s statements on
the internet about the plaintiffs’ business activity did not involve a
matter of public concern because they involved a private business
dispute between private parties. Id. at ¶ 28. In support of this
conclusion, the court noted that the record contained no evidence
suggesting that anyone other than the widow had been directly
affected by the plaintiffs’ business activity or that any government
entities had become involved. Id. Thus, the division concluded that
the plaintiffs were not required to prove actual malice to succeed on
their claims. Id. at ¶¶ 25, 29.
¶ 68 The same can be said about Sullivan’s online reviews in this
case. The allegedly defamatory statements were made by a
nonmedia defendant (Sullivan) about private individuals (a licensed
32
dentist and his dental practice). These statements did not
automatically become a matter of public concern because Sullivan
posted her reviews on Yelp and Google. See Snead v. Redland
Aggregates Ltd., 998 F.2d 1325, 1330 (5th Cir. 1993) (“A speaker
cannot turn his speech into a matter of public concern simply by
issuing a press release.”). Rather, the content and context of
Sullivan’s statements reveal that they involve a private dispute with
her dentist. Specifically, Sullivan’s online reviews discuss her
dissatisfaction with the root canal therapy she received from
Dr. Stubbs because, in her view, he overfilled her root canals,
causing extreme pain. The record contains no evidence that Dr.
Stubbs’ dental care affected anyone other than Sullivan or that
Sullivan’s message was intended to enlighten the public about a
political, social, or other concern in the community. Accordingly,
Sullivan’s online reviews do not involve a matter of public concern.
¶ 69 In my view, because of the proliferation of internet forums
such as Yelp and Google, the majority’s opinion risks
constitutionalizing defamation claims involving private disputes
between private individuals. Today, anyone who is dissatisfied with
a local grocery store, florist, pizza parlor, or dentist can write an
33
online review. While there are benefits to such forums, I do not
believe the New York Times “actual malice” standard — which was
intended primarily to protect media defendants from liability for
publishing stories about public officials, public figures, and matters
of public concern — was ever intended to apply to such private
disputes.
¶ 70 But given the parties’ agreement that Sullivan’s online reviews
were made “in connection with a public issue,” I respectfully concur
in the judgment only.
34