2022 COA 145
Colo. Ct. App.2022Background
- Patient Kathryn Sullivan received root canal therapy from Dr. Andrew Stubbs; she experienced persistent pain and sought second opinions.
- Multiple dentists (including Drs. Pineda, Litano, and Rodeghero) concluded some canals were overfilled; Stubbs disputed that overfilling caused her pain and ultimately terminated the doctor‑patient relationship.
- Sullivan posted one‑star reviews on Yelp and Google alleging overfilling, sinus involvement, pain, and that Stubbs refused accountability; she attached radiographic images.
- Creekside Endodontics and Stubbs sued Sullivan for libel per se and trade/product disparagement; Sullivan filed a special motion to dismiss under Colorado’s anti‑SLAPP statute (§ 13‑20‑1101(3)(a)).
- The district court denied the motion; the Court of Appeals (agreeing with L.S.S. v. S.A.P.) applied a heightened standard requiring plaintiffs to show a probability they can produce clear and convincing evidence of actual malice when the speech involves public concern.
- The court held Plaintiffs failed that burden as to the actionable assertions (no clear and convincing evidence of actual malice) and that remaining statements were nonactionable opinion; it reversed, directed dismissal, and ordered attorney fees and costs for Sullivan.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Sullivan’s online reviews were "in connection with a public issue" under the anti‑SLAPP statute | Reviews concern a private dispute with a dentist and thus fall outside anti‑SLAPP protection | Reviews relate to public‑facing consumer reviews and implicate public issue protections | Court assumed, without deciding, the reviews were in connection with a public issue (parties did not develop contrary argument on appeal) |
| Standard for "reasonable likelihood" at anti‑SLAPP stage when actual malice will be required at trial | A low "minimal merit" showing suffices to defeat dismissal | Plaintiffs must show a probability of producing clear and convincing evidence of actual malice | Adopted heightened L.S.S. standard: plaintiff must show probability of clear and convincing evidence of actual malice |
| Whether Plaintiffs met the burden to show actual malice for statements alleging overfilling and causation | Sullivan published falsehoods or acted with reckless disregard for truth | Sullivan reasonably relied on opinions of multiple dentists and her investigation; no serious doubts about truth | Plaintiffs failed to show a probability of proving actual malice by clear and convincing evidence; dismissal required |
| Whether statements about Stubbs’ reaction (e.g., "ignored me", "gaslit", refusal to rectify) were actionable | Phrases imply callous, negligent conduct and are defamatory | Statements are nonactionable opinion supported by disclosed factual bases (images, other dentists’ opinions, termination of care) | Court held these statements constituted protected opinion because factual bases were provided; nonactionable |
Key Cases Cited
- New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (establishes actual malice standard for speech on public matters)
- Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (states may set standards for defamation of private persons; distinguishes public‑concern doctrine)
- Baral v. Schnitt, 376 P.3d 604 (Cal. 2016) (anti‑SLAPP procedural framework; evidentiary approach at early stages)
- Walker v. Colo. Springs Sun, Inc., 538 P.2d 450 (Colo. 1975) (extends actual malice standard to matters of public or general concern)
- Diversified Mgmt., Inc. v. Denver Post, Inc., 653 P.2d 1103 (Colo. 1982) (refines recklessness definition for actual malice in Colorado)
- Burns v. McGraw‑Hill Broad. Co., 659 P.2d 1351 (Colo. 1983) (discusses rarity of direct evidence of knowledge of falsity)
- Reddick v. Craig, 719 P.2d 340 (Colo. App. 1985) (lay investigation that is not grossly inadequate cannot establish actual malice)
- Seible v. Denver Post Corp., 782 P.2d 805 (Colo. App. 1989) (defendant’s reliance on investigation and sources can defeat actual malice claim)
- Keohane v. Stewart, 882 P.2d 1293 (Colo. 1994) (defines elements of defamation under Colorado law)