2023 COA 114
Colo. Ct. App.2023Background
- Tender Care Veterinary Center treated two plaintiffs' dogs; both owners later sought refunds after pursuing alternate treatment and were denied.
- Lind-Barnett posted multiple critical messages about Tender Care on its Facebook page and several community Facebook pages; Davis reposted and echoed criticisms.
- Posts accused Tender Care of malpractice, incompetence, dishonest practices, COVID policy failures, and other misconduct; Tender Care alleges defamation per se based on 114 challenged statements.
- Defendants filed a special motion to dismiss under Colorado’s anti-SLAPP statute, arguing their online reviews addressed an issue of public interest (consumer warning about veterinary care).
- The district court denied the motion, finding the posts were primarily a private business dispute and that protected statements (if any) were incidental to unprotected conduct; the court alternatively found Tender Care had a reasonable likelihood of prevailing.
- The Colorado Court of Appeals affirmed, holding the statements lacked the required nexus to a public issue and anti-SLAPP protection did not apply where protected speech was merely incidental to a personal vendetta.
Issues
| Issue | Plaintiff's Argument (Tender Care) | Defendant's Argument (Lind-Barnett/Davis) | Held |
|---|---|---|---|
| Whether the Facebook posts were made in connection with a "public issue" or "issue of public interest" under § 13-20-1101 | Posts were private attack and not about public interest | Posts were consumer reviews warning the public about veterinary care in a small community | Held: Not a public issue — context, purpose, audience show private dispute, so no anti-SLAPP protection |
| Whether labeling posts as "warnings" makes them protected public-interest speech | Warnings were pretext for defamation; not public-interest speech | Labels and consumer-warning language render posts protected consumer information | Held: Labels do not convert vindictive postings into protected speech; purpose and context control |
| Whether any protected statements were merely incidental to unprotected conduct | N/A (Tender Care argues core injury from unprotected attacks) | Some diagnostic criticisms touched public-interest topics (veterinary care quality) and should be protected | Held: Even if some statements related to veterinary care, protected speech was incidental to the predominant unprotected, revenge-driven attacks — anti-SLAPP inapplicable |
| Whether Tender Care showed a reasonable likelihood of prevailing on defamation claims (second-step) | Tender Care had sufficient factual showing to survive dismissal | Defendants argued plaintiff could not show likelihood of success | Held: Court did not reach merits on appeal because anti-SLAPP inapplicable; district court had alternatively found reasonable likelihood of prevailing |
Key Cases Cited
- FilmOn.com Inc. v. DoubleVerify Inc., 439 P.3d 1156 (Cal. 2019) (requires a sufficient nexus between challenged statements and asserted public interest)
- Gilbert v. Sykes, 53 Cal. Rptr. 3d 752 (Ct. App.) (statements contribute to public debate when they provide broader consumer information beyond personal attack)
- Wilbanks v. Wolk, 17 Cal. Rptr. 3d 497 (Ct. App.) (not all statements related to a subject of widespread interest are matters of public interest)
- Comstock v. Aber, 151 Cal. Rptr. 3d 589 (Ct. App.) (anti-SLAPP inapplicable where protected conduct is merely incidental to unprotected conduct)
- Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP, 35 Cal. Rptr. 3d 31 (Ct. App.) (incidental protected conduct does not trigger anti-SLAPP)
- McIntyre v. Jones, 194 P.3d 519 (Colo. App. 2008) (framework for determining when matter is of public concern)
- City of San Diego v. Roe, 543 U.S. 77 (2004) (public concern defined as subjects of legitimate news interest)