Commercial Litigation and Arbitration

Internet Evidence — Circumstantial Authentication That Defendants Made Yelp Postings: Failure to Deny Authorship and Repetition of Substantially the Same Alleged Grievances in Court Filings Suffices

Pham v. Lee, 2014 Cal. App. Unpub. LEXIS 8812 (Cal. Ct. App. Dec. 11, 2014):

Plaintiff Randal Pham, an ophthalmologist, filed a defamation action against defendants Jenny Lee and Alvin Lee (the Lees) for statements they made on the Internet accusing Dr. Pham of fraud, among other things. The Lees moved to strike Dr. Pham's lawsuit under Code of Civil Procedure section 425.16, the anti-SLAPP statute (section 425.16 [*1] ). The trial court denied the motion, and the Lees now appeal from the denial. ( 425.16, subd. (i).)[1]

 We conclude that because Dr. Pham has shown a probability of prevailing on the merits, the trial court did not err in denying the Lees' motion to strike. Accordingly, we will affirm the judgment.


I.  Factual and Procedural Background

 Dr. Pham operates an ophthalmology clinic in San José. His patients included Young Lee (the Lees' father) and Chinh Tri Truong (the Lees' grandmother). The statements at issue arose in connection with Dr. Pham's treatment of Young Lee and Chinh Tri Truong.

A. The Complaint

On July 12, 2012, Dr. Pham filed a complaint against the Lees in Santa Clara County Superior Court alleging a single cause of action-defamation. The complaint alleged that the Lees posted "false, inaccurate, and/or defamatory" statements about Dr. Pham's business practices on various Web sites. The complaint [*2]  also alleged that the Lees knew or should have known the statements were false, and that they made the statements "with malice and intent to injure plaintiffs business and business reputation." Dr. Pham attached three exhibits to the complaint, which appear to be printouts of the Lees' online reviews of Dr. Pham's business practices.

Exhibit A to the complaint is a printout of the profile page from the Web site (Yelp) for an individual identified as "Alvin 'chipmunk20' L." The profile, which includes the individual's photograph, specifies his location as Davis, California, and his hometown as San José. The profile includes a review for Dr. Pham posted on March 29, 2012, stating: "I've taken my grandmother here multiple times for her appointments and needless to say, this place frustrates me greatly. They overbook every single day to maximize how much money they make in a day. They told me it shouldn't take more than an hour, but in the end I missed an appointment I had because I ended up waiting for 2.5 hours. This has happened on multiple occasions which I see as very unprofessional. The reason for setting an appointment is to make sure you don't waste time waiting. Sure [*3]  all of the patient [sic] are mostly senior citizens that don't mind waiting for hours because they can interact and socialize with the countless others who have been waiting, but what about the people who take them there and are forced to wait. If you schedule an appointment for 4:30 and aren't seen until 6, there is definitely something wrong with your scheduling system. I highly suggest that you fix that problem. A free clinic moves faster than this place."

Exhibit B to the complaint is a printout of the Yelp profile page for an individual identified as "Jenny 'CJ' V." The profile includes the individual's photograph and lists her location as San José. A review for Dr. Pham posted on June 26, 2012, states: "He's a crook. Stay away."

Exhibit C to the complaint is a printout of a review of Dr. Pham from the Web site posted by a user named "Jenny L." from San José. The review, posted on March 29, 2012, states: " 'Fraud.' They completely breached patient trust by scamming me out of $200. The doctor said he was going to order special glasses to help with my vision. He ended up ordering a pair of standard reading glasses you can purchase from the drug store. Do not trust [*4]  him. He does this systematically to other patients as well. I was in the lobby and overheard the exact same problem being reported by another patient."

B. The Anti-SLAPP Motion

 On September 10, 2012, the Lees filed a special motion to strike under section 425.16, the anti-SLAPP law. They supported the motion with declarations from themselves, Young Lee, Chinh Thi Truong, and their counsel. The Lees did not deny making the Internet posts at issue. To the contrary, they included assertions about Dr. Pham's practice similar to the complaints made in the Internet posts. Jenny alleged that she had taken her grandmother to Dr. Pham's clinic on several occasions, and that her grandmother had to wait at least 45 minutes on each occasion despite arriving on time.[2] Jenny alleged that Dr. Pham sold her father common drugstore glasses for $199, and that identical glasses could be purchased elsewhere for less than $16. Her declaration attached a complaint about Dr. Pham's sale of the glasses that she had submitted to the Better Business Bureau. She included a copy of an email exchange with the Better Business Bureau dated March 30, 2012-the day after the date of the post by "Jenny L." on

 [*5]  Similarly, Alvin's declaration asserted that he had taken his grandmother to Dr. Pham's clinic on multiple occasions, and that they experienced excessive wait times of up to 70 minutes. Alvin alleged that he observed many other patients waiting in Dr. Pham's waiting room because Dr. Pham had overbooked his appointments. Alvin also repeated Jenny's assertion that Dr. Pham had sold their father inexpensive drugstore glasses, which Dr. Pham described as "prescription" glasses, for $199. Alvin alleged that his father had heard other patients complain about this practice as well.


1. The Record Supports an Inference That the Lees Made the Statements at Issue

The Lees contend Dr. Pham failed to [*15]  show they made the Internet posts in question. We disagree. Dr. Pham's complaint and the declaration of his counsel included printouts of negative reviews showing they were made by persons with the same first names and last initials of the Lees. The Lees, in their declarations, do not deny they made the posts. To the contrary, they both submitted declarations making allegations identical in substance to the assertions made in the posts. Furthermore, the Lees' own declarations state that Young Lee visited Dr. Pham's clinic on March 27, 2012, at which time he purchased glasses from Dr. Pham for $199. The Internet post by "Jenny L." appeared on March 29, 2012, and Jenny's email exchange with the Better Business Bureau occurred the day after the negative review. This evidence supports the inference that the Lees made the allegedly defamatory posts.

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