Cheski v. Dardashti

Filed 2/11/10 Cheski v. Dardashti CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from an order of the Superior Court of Los Angeles County, Holly E. Kendig, Judge. Affirmed.

Lyden & Jackson and Christine C. Lyden for Defendants and Appellants.

Galen & Davis and Jeffrey M. Galen for Plaintiffs and Respondents.

_______________________

INTRODUCTION

Defendants Roya Dardashti, M.D., and her medical practice, Roya Dardashti, M.D., Inc., appeal from the denial of their special motion to strike the first amended complaint of plaintiffs Peter Cheski, M.D., and his medical practice, Peter Cheski, M.D., Inc. The motion was made pursuant to Code of Civil Procedure[1] section 425.16, commonly referred to as the anti-SLAPP[2] statute. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant Roya Dardashti, M.D., was a licensed physician and surgeon specializing in plastic and cosmetic surgery. She performed breast augmentation surgery. She did not offer the procedure known as Trans-Umbilical Breast Augmentation (TUBA), in that, in her opinion, the associated risks were too great. She sometimes performed corrective surgery on patients whose original surgery was performed by other physicians. Her medical practice, defendant Roya Dardashti, M.D., Inc., had its offices in Los Angeles County.[3]

Plaintiff Peter Cheski, M.D., was a board certified, licensed physician and surgeon providing services in facial, plastic, reconstructive and cosmetic surgery. He specialized in breast augmentation surgery and performed the TUBA procedure. His medical practice, plaintiff Peter Cheski, M.D., Inc., also had its offices in Los Angeles County.[4]

Three of Cheskis patients filed medical malpractice suits against him. Dardashti had provided corrective services to the three patients after the allegedly negligent surgeries by Cheski. She produced medical records of her treatment of the three patients in response to deposition subpoenas served on her by Cheski. Ultimately, each of the suits was dismissed on procedural grounds.

During the pendency of the three lawsuits, Cinthya Morales (Morales) conducted an undercover investigation at Dardashtis office. Morales was hired to perform investigative services to determine independently whether or not Dardashti was making defamatory statements to third parties regarding Cheski. Morales met with Dardashti at an appointment she had previously scheduled, saying that she was interested in obtaining breast augmentation surgery. She told Dardashti that a friend of hers had recently had this type of surgery performed by Cheski who operated through the belly button for breast augmentation. She then asked if Dardashti performed the procedure; Dardashti said she did not do so. Then, without any further questions or prompting by Morales, Dardashti volunteered the statements at the core of this action, which Cheski subsequently filed. Cheski alleged causes of action against Dardashti for slander, intentional infliction of emotional distress, and intentional interference with economic relations.

Cheskis principal allegation was that Dardashti knowingly made defamatory statements to his patients, potential patients and other individuals that Cheski: (1) is not a licensed plastic surgeon; (2) is an ears, nose and throat surgeon; (3) is not licensed to perform breast augmentation surgery; (4) is incompetent and a complete idiot; (5) had many patients who came to Dardashti to fix the mistakes Cheski made; (6) performs the belly button procedure for breast augmentation, which is an extremely dangerous and unsafe procedure; (7) does not care about his patients, wants to perform as many surgeries as possible and is all about the money; (8) has killed two patients; and (9) is totally negligent in performing surgery.

Dardashti filed an anti-SLAPP motion to strike Cheskis complaint pursuant to section 425.16. She supported the motion by her own declaration, her attorneys declaration and a request for judicial notice of the 2003 Medical Board of California disciplinary action against Cheski[5] and the complaints filed in the three malpractice actions. Dardashti based the motion on the grounds that the statements concerned an issue of public interest and of common interest, were made in furtherance of her right of free speech, and were ancillary to her conduct in connection with the pending malpractice actions.

The trial court ruled that Dardashti failed to meet her burden to show that her alleged statements were protected activities under section 425.16, subdivision (e). The court found that the statements at issue were not made in any protected proceeding, were not made in connection with a public issue or an issue of public interest, and were not made in furtherance of Dardashtis constitutional right to free speech. The court denied the anti-SLAPP motion.

DISCUSSION

The anti-SLAPP statute provides a quick dismissal remedy for a meritless suit arising from the exercise of protected free speech. (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073.) Section 425.16 states that [a] cause of action against a person arising from any act of that person in furtherance of the persons right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. (Id., subd. (b)(1).)

Initially, the defendant has the burden to make a prima facie showing that the causes of action against him or her arose from protected activity, that is, conduct in furtherance of his or her constitutional rights of free speech or petition. (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2006) 136 Cal.App.4th 464, 472-473.) The protected activities are, as follows: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. ( 425.16, subd. (e).)

If the defendant makes the required showing, then the burden shifts to the plaintiff. (Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 106.) In order to prevent the trial court from granting the anti-SLAPP motion, the plaintiff must demonstrate a reasonable probability of prevailing on any part of his or her claims for each cause of action against the defendant and, thus, that the cause of action is not meritless. (Ibid.)

An order denying a special motion to strike under the anti-SLAPP statute is immediately appealable. ( 425.16, subd. (i), 904.1, subd. (a)(13).) We review the denial order de novo. (Scott v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404, 413.) Like the trial court, we consider the pleadings and evidence submitted by both sides but do not assess credibility or weigh the evidence. (Blanchard v. DIRECTV, Inc. (2004) 123 Cal.App.4th 903, 918.) We must accept as true the evidence favorable to the plaintiff and evaluate the defendants evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law. (Ibid.)

Dardashti contends that the trial court erred by denying her anti-SLAPP motion, in that the alleged defamatory statements were protected speech within the parameters of the anti-SLAPP statute. She claims that Cheskis initiation and reliance on the related undercover investigation by Morales demonstrates that Cheski brought the instant action against her in retaliation for her participation on behalf of the patients in the malpractice actions. Dardashti asserts the statements were, therefore, protected because they were made in connection with an issue under consideration or review in a legally authorized official proceeding ( 425.16, subd. (e)(2)). We disagree.

Morales was the sole source of the statements, which Dardashti allegedly made to her during an office appointment based upon her representation that she was seeking breast augmentation services from Dardashti. Dardashti made the statements during a confidential consultation with a single patient. She did not make the statements in any legal proceeding or public forum. The fact that Morales was conducting an undercover investigation does not change the character of the statements. (See City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) Therefore, the statements do not qualify as statements made in legal proceedings or a public forum under section 425.16, subdivision (e)(1), (2) or (3).

Dardashti also claims that the statements are protected because they pertained to public issues or issues of public interest ( 425.16, subd. (e)(3) & (4)), to wit, the competency of physicians, in particular, Cheski as a public figure, and the safety of the TUBA procedure for breast augmentation. Dardashti avers that the court in Gilbert v. Sykes (2007) 147 Cal.App.4th 13 established that the relative merits of plastic surgery is a subject that has garnered national attention and is the focus of widespread public interest. (Id. at p. 25.) She asserts Cheski has status as a limited purpose public figure, just as the Gilbert court extended to the plaintiff physicians who advocated cosmetic surgery and voluntarily involved themselves in the dialogue about its merits. (Ibid.) Dardashti points to Cheskis statements in his complaint as being admissions of his status as such a public figure. We disagree with these claims also.

As previously noted, the statements do not qualify under section 425.16, subdivision (e)(3), in that they are not written or oral statements made in a place open to the public or a public forum. Thus, the sole remaining issue is whether they qualify under section 425.16, subdivision (e)(4), because they were made in connection with a public issue or an issue of public interest. We conclude they do not qualify.

The purpose of the public interest requirement, like all of section 425.16, is to . . . encourage participation by all segments of our society in vigorous public debate related to issues of public interest. (Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 808; accord, Gilbert v. Sykes, supra, 147 Cal.App.4th at p. 23.) Dardashti did not make the statements in the context of a public issue or an issue of public interest or in the furtherance of vigorous public debate on such an issue. (Gilbert v. Sykes, supra, 147 Cal.App.4th at p. 23.) Rather, she made them in the context of a private, confidential professional medical consultation specific to one person she believed was a patient or at least a prospective patient. Although some part of the consultation may have touched on the competency of a physician, it was only one physicianCheski. Likewise it may have touched on plastic surgery, but only with respect to a specific procedureTUBA, and only as it pertained to whether Dardashti offered the TUBA procedure.

In the case relied on by Dardashti, Gilbert v. Sykes, supra, 147 Cal.App.4th 13, there was no question whether Gilberts statements about plastic surgery and physicians, including her surgeon, Sykes, were made in a public forum. They were made on Gilberts Internet Web site. (Id. at p. 23.) The court determined that Gilberts statements concerning only her interaction with Sykes did, in fact, contribute to the public debate, in that they were only one part of the Web site. (Id. at pp. 23-24.) A review of the entire Web site, the court explained, showed that it was not limited to only Gilberts surgery and other interactions with Sykes and the nightmare results requiring revision surgery. The site also contained advice on decisions to undergo plastic surgery, tips on choosing a plastic surgeon, references to other Web sites and resources, Gilberts ruminations about plastic surgery in general, and a contact page where readers could share their own experiences. (Ibid.)

Taken out of the actual context in which they were made, Dardashtis alleged statements about breast augmentation methods and Cheskis competence are similar to those the Gilbert court characterized broadly as matters of public interest, and Cheski may come within the limited public figure status recognized by the court. The context, however, differs markedly from that in Gilbert. Dardashti made the alleged statements in a private, confidential patient consultation to one person. That is markedly different from statements made in vigorous public debate related to issues of public interest, which section 425.16 is intended to protect. (Seelig v. Infinity Broadcasting Corp., supra, 97 Cal.App.4th at p. 808; accord, Gilbert v. Sykes, supra, 147 Cal.App.4th at p. 23.)

For the foregoing reasons, we conclude that Cheskis causes of action do not arise from any activity by Dardashti which is protected under section 425.16, subdivision (e). Therefore, Dardashti failed to meet her burden to establish a prima facie case that the causes of action arose from protected activity. ( 425.61, subd. (b)(1); Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn., supra, 136 Cal.App.4th at pp. 472-473.) The trial court properly denied Dardashtis anti-SLAPP motion.

DISPOSITION

The order is affirmed. Plaintiffs shall recover their costs on appeal.

JACKSON, J.

We concur:

PERLUSS, P. J.

WOODS, J.

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[1] All further statutory references are to the Code of Civil Procedure.

[2] SLAPP is an acronym for strategic lawsuit against public participation. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1109, fn. 1.)

[3] Hereinafter, Dardashti shall refer to Dr. Dardashti as an individual or defendants collectively.

[4] Hereinafter, Cheski shall refer to Dr. Cheski as an individual or plaintiffs collectively.

[5] The Medical Board of California adopted a stipulated settlement and disciplinary order reached with Cheski in resolution of an accusation filed against him in May 2001. The accusation charged Cheski with providing specified patients with plastic surgery which was below the standard of care. In the stipulated settlement, Cheski admitted that Complainant could establish a prima facie case as to certain charges in the Accusation. There were no admissions or findings, however, as to any of the specific charges.