Wong v. Jing
189 Cal. App. 4th 1354
| Cal. Ct. App. | 2010Background
- Wong sued Jing, Ma, and Yelp over a Yelp review alleging false statements about her dental care.
- Defendants moved to strike under California's anti-SLAPP statute, § 425.16, arguing the review was protected speech on a public issue.
- The trial court denied the motion; on appeal the court reverses and remands.
- Yelp was voluntarily dismissed without prejudice, but remained a party to the anti-SLAPP motion for purposes of appeal.
- The Yelp review criticized use of silver amalgam containing mercury and nitrous oxide in pediatric dentistry, raising public-interest concerns.
- Ma’s involvement was contested; Jing claimed to have written the review, while Ma asserted no knowledge of the post.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether posting the review constitutes protected conduct | Wong: review relates to private dispute, not protected conduct | Jing/Ma/Yelp: review concerns public issue about dental safety and is in a public forum | Yes; posting was protected conduct arising from a public-issue discussion |
| Whether Wong showed probable success on libel against Jing | Wong: review implies false medical-warnings and misdiagnosis | Jing: no express claim of warning lapse; interpretations vary | Yes; Wong showed prima facie defamation based on implied factual assertions |
| Ma's liability under the anti-SLAPP motion | Wong contends Ma liable for involvement in posting | Ma claims no involvement or knowledge | Ma liable none; anti-SLAPP should dismiss as to Ma |
| Whether emotional distress claims survive anti-SLAPP | Wong: posting caused severe emotional distress | Distress claims require 'severe' harm; posting alone not enough | Dismissed; emotional distress claims were not shown to be severe/serious |
Key Cases Cited
- Barrett v. Rosenthal, 40 Cal.4th 33 (Cal. 2006) (public forums include websites for anti-SLAPP protection)
- Equilon Enterprises v. Consumer Co., Inc., 29 Cal.4th 53 (Cal. 2002) (two-step analysis for anti-SLAPP motions)
- Jarrow Formulas, Inc. v. LaMarche, 31 Cal.4th 728 (Cal. 2003) (requires prima facie showing for protected activity and probability of success)
- Navellier v. Sletten, 29 Cal.4th 82 (Cal. 2002) (defendant must show protected activity; plaintiff must show merit)
- Forsher v. Bugliosi, 26 Cal.3d 792 (Cal. 1980) (libel by implication permitted; totality of circumstances test)
- McGarry v. University of San Diego, 154 Cal.App.4th 97 (Cal. App. 2007) (distinguishes fact vs. opinion in defamation; false implication actionable)
- Hughes v. Pair, 46 Cal.4th 1035 (Cal. 2010) (defines 'severe emotional distress' standard for IIED)
- Molien v. Kaiser Foundation Hospitals, 27 Cal.3d 916 (Cal. 1980) ('serious' emotional distress standard in negligence claims)
- Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965 (Cal. 1993) (emotional distress standards; )