Filed 8/17/22 Creative Care v. McEntyre CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

APPEAL from an order of the Superior Court of Los Angeles County, Gregory Keosian, Judge. Affirmed.

Citron & Citron, Thomas H. Citron and Katherine A. Tatikian for Plaintiffs and Appellants.

Allen Saltzman, Tom M. Allen and Erica L. Saltzman for Defendant and Respondent.

_________________________

Plaintiffs and appellants Dr. Morteza Khaleghi and Creative Care, Inc. (collectively, plaintiffs) sued defendant and respondent Wendy McEntyre for defamation. Thereafter, the trial court granted McEntyre’s special motion to strike, commonly known as an anti-SLAPP motion (Code Civ. Proc.,[1] § 425.16), and awarded her attorney fees and costs. Plaintiffs now appeal the order. We affirm.

BACKGROUND

I. Plaintiffs sue McEntyre for defamation.

Creative Care is a substance abuse and mental health treatment facility co-owned by Dr. Khaleghi. Beginning in July 2019, McEntyre began posting about Creative Care on Facebook, prompting Creative Care and Dr. Khaleghi to sue McEntyre.

In 2020, plaintiffs filed a complaint alleging causes of action against McEntyre for (1) defamation, libel, (2) defamation, libel per se, (3) false light, (4) intentional infliction of emotional distress, (5) negligent infliction of emotional distress, and (6) intentional interference with prospective economic relations. The third, fourth, and fifth causes of action were alleged only by Dr. Khaleghi.

The complaint alleged that, beginning in July 2019, McEntyre posted defamatory statements about Creative Care on Facebook.

On July 4, 2019, she posted: “So I woke up to this: SHAME ON YOU CREATIVE CARE!!! SHAME ON YOU DR. PHIL! STOP TELLING PEOPLE THAT CREATIVE CARE IS A GREAT PLACE!!!” A photograph of a coroner’s van in a driveway accompanied the post. Apparently that same day, McEntyre posted that “the Malibu facility burned down so a 4 house facility on 30 acres went to 4 houses next door to each other in a [cul-de-sac] in Woodland Hills. It used to be a great place. The staff that was there for many years is no longer there. They were top notch. Now there is inexperienced and dangerous staff. One suicide death in January, a[ ] gruesome attempted suicide death in February and an overdose death on July 3rd. There was no overnight staff where these people died. Both of these patients that died needed a higher level of care. This is what happens when greed overtakes a person’s soul. Unfortunately, Creative Care is clearly putting profits over safety. I know this to be 100% fact and if were called to testify in a court of law I would gladly do so.” The post further implored, “PLEASE STOP REFERRING PEOPLE TO CREATIVE CARE.”

On December 25, 2019, McEntyre posted: “PUBLIC SERVICE ANNOUNCEMENT Yesterday Dr. Phil aired a[n] episode that endorsed Creative Care in Woodland Hills. Be advised the Department of Health Care Services suspended their licen[s]e last week so DO NOT listen to Dr. Phil. Dr. Phil was put on notice several months ago about this facility and their problems and again early this week about their suspension. This is willful ignorance. Shame on you Dr. Phil. Do NOT send your loved one to Creative Care.” The same photograph of a coroner’s van in a driveway accompanied the post.

On January 15, 2020, McEntyre posted on Facebook, “DR. PHIL STOP REFERRING PEOPLE TO CREATIVE CARE. YOU DID IT AGAIN TODAY! YOU WERE PUT ON NOTICE SEVERAL TIMES! IF SOMEONE GETS HURT IT WILL BE CONTRIBUTORY NEGLIGENCE BECAUSE OF YOUR WILLFUL IGNORANCE!!! THEY DO NOT POSSESS A LICENSE! STOP REFERRING PEOPLE TO THIS DANGEROUS PLACE.” In the comments section, McEntyre said “they” were ignoring her emails, and she wouldn’t be making “a BFD if there weren’t MULTIPLE DEATHS.”

Thereafter, plaintiffs filed a first amended complaint (FAC) alleging the same causes of action. The FAC added allegations that plaintiffs had a longstanding relationship with Dr. Phil, a host of a television show on which Dr. Khaleghi regularly appeared. The FAC alleged that McEntyre had made a number of defamatory statements, including that she had posted the following: “Daily there are hundreds of clients, 30 vehicles, emergency activity weekly.” The FAC referred to a statement published on or about December 25, 2019 stating that Creative Care has “inexperienced and dangerous staff” and asking Dr. Phil to stop referring people to Creative Care. Finally, the FAC referred again to the January 15, 2020 Facebook post, cited above. However, the FAC did not mention the second July 4, 2019 Facebook post about the Malibu facility burning down.

II. McEntyre’s special motions to strike[2]

McEntyre moved to strike all causes of action in the FAC under section 425.16 on the grounds she was immune under federal law, the alleged libel arose from constitutionally protected speech, and the alleged statements were not libelous as a matter of law. She thus argued that her statements were made in a public forum (Facebook) and related to a matter of public interest (alcohol and drug addiction rehabilitation). Also, there was no probability plaintiffs could prevail because McEntyre was immune under the Communications Decency Act (47 U.S.C. § 230), and she did not act with actual malice.

In her supporting declaration, McEntyre described herself as a public safety advocate who founded Jarrod’s Law after her son died at a sober living facility. Jarrod’s Law is a nonprofit, watchdog organization that monitors and exposes inefficient, unsafe, and illegal practices in facilities like Creative Care. McEntyre said she based her statements on an accusation filed in about 2019 by the State of California’s Department of Health Care Services (DHCS) against Creative Care. According to the accusation, there had been two client deaths and one attempted suicide at the facility in 2019. The accusation detailed deficiencies related to medications, detoxification, and client and personnel files. It also detailed personnel deficiencies and misconduct. DHCS revoked Creative Care’s license to operate a residential detoxification program and temporarily suspended it from providing residential services.

In further support of her motion, McEntyre submitted negative Yelp reviews complaining, for example, that Creative Care had failed to treat someone’s son, had failed to involve a patient’s family in treatment, and that the facility’s owners had not gone to an accredited school.

III. Plaintiffs’ opposition to the motions

In their opposition, plaintiffs conceded that Facebook is a public forum but denied that McEntyre’s statements involved a matter of public interest, as they did not concern treatment and rehabilitation facilities in general. As for their probability of prevailing on the causes of action, plaintiffs said their evidence established that Creative Care did not operate in violation of licensing laws, and its staff had advanced degrees and were licensed to perform the services. Plaintiffs also argued that McEntyre’s evidence was inadmissible, so she could not establish the defense of the truth of her statements. Further, plaintiffs were not public figures.

In support of the opposition, plaintiffs submitted copies of McEntyre’s posts.[3] However, they did not submit a copy of the post about there being hundreds of clients at the Woodland Hills property daily, 30 vehicles, and weekly emergency activity, and referring to the staff as dangerous.

Also in support of the opposition, Dr. Khaleghi explained in his declaration that Creative Care is a behavioral health care provider with two treatment programs: a dual diagnosis treatment program for substance abuse and a mental health treatment program. Although Creative Care used to provide residential services, it had been providing only outpatient services since December 2019. It also operates sober living homes for which no license is required. DHCS has licensed Creative Care’s residential mental health program. The doctor denied ever operating in violation of licensing laws. He further denied that there are ever 30 vehicles on its properties and having hundreds of clients daily.

Dr. Khaleghi described Creative Care’s clinical team as experienced and qualified, and he detailed each care provider’s background.

In response to McEntyre’s allegations that patients had died at the facility, Dr. Khaleghi explained that a former patient committed suicide while at one of Creative Care’s residential drug treatment homes. Just before the patient was to go home, her husband told her she would not be welcome there if she were taking medications. The patient then hung herself. That patient’s family is suing Dr. Khaleghi and Creative Care, and the plaintiffs in that case are represented by the same attorney representing McEntyre in this case. Dr. Khaleghi is therefore concerned that the attorney is using McEntyre to prejudice witnesses in the other case.

Dr. Khaleghi has appeared on Dr. Phil’s show, resulting in some viewers seeking treatment at Creative Care. But since McEntyre began her campaign against Creative Care, some patients have discontinued their care, and Creative Care has experienced a decline in new clients.

To show that McEntyre’s campaign against Creative Care was malicious in nature, plaintiffs pointed to a 2016 workplace violence restraining order another drug and alcohol abuse treatment program obtained against McEntyre. Plaintiffs also submitted evidence that McEntyre surrendered her real estate broker license after submitting a forged document.

Plaintiffs submitted positive Yelp reviews.

IV. The trial court grants the motion

The trial court first ruled on the numerous evidentiary objections the parties had made. As relevant here, the trial court sustained objections to DHCS’s accusation to the extent it was offered for the truth of the assertions made therein but overruled the objections to the extent the accusation was offered to prove the basis for McEntyre’s statements.

Moving to the first prong of the anti-SLAPP motion, the trial court found that the claims were based on protected activity. On the second prong, the trial court rejected McEntyre’s claim of immunity under federal law but nonetheless found that plaintiffs had failed to establish a probability of prevailing on the merits. After finding that none of the allegedly defamatory statements named Dr. Khaleghi and therefore did not concern him, the trial court found that, in any event, none of the statements were defamatory statements of fact. Given its finding that the statements were not defamatory, the trial court similarly found that the causes of action for intentional and negligent infliction of emotional distress and intentional inference with prospective economic advantage failed, as there was no extreme, outrageous, and negligent conduct or wrongful act.

The trial court awarded McEntyre $14,030 in attorney fees and costs.

DISCUSSION

I. The anti-SLAPP statute and standard of review

The anti-SLAPP statute provides a procedure for the early dismissal of SLAPP suits (strategic lawsuits against public participation), which is litigation of a harassing nature brought to challenge the exercise of protected free speech rights. (Fahlen v. Sutter Central Valley Hospitals (2014) 58 Cal.4th 655, 665 & fn. 3; accord, Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) The statute provides that a “cause of action against a person arising from any act of that person in furtherance of the person’s 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.” (§ 425.16, subd. (b)(1).) The statute is broadly construed. (Id., subd. (a).)

Evaluating an anti-SLAPP motion requires the trial court first to determine whether the moving defendant has made a threshold showing that the challenged action arises from protected activity, that is, activity in furtherance of the rights of petition or free speech. (§ 425.16, subd. (e); Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.) If so, the burden shifts to the plaintiff to demonstrate a probability of prevailing. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819–820.) This second step is a summary-judgment-like procedure at which the trial court does not weigh evidence or resolve conflicting factual claims. (Baral v. Schnitt, supra, 1 Cal.5th at p. 384.) The trial court’s inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment, accepting as true the plaintiff’s evidence and evaluating the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. (Id. at pp. 384–385.)

We review an order granting or denying an anti-SLAPP motion de novo, conducting the same two-step process as did the trial court to determine whether (1) as a matter of law, the defendant met her initial burden of showing the challenged claim arose out of the defendant’s protected activity and, (2) if so, whether the plaintiffs met their burden of showing a probability of success. (Optional Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP (2017) 18 Cal.App.5th 95, 112–113.)

II. The claims arose out of protected activity.

Section 425.16 defines categories of protected activity. As relevant here, one category is for conduct “in a place open to the public or a public forum in connection with an issue of public interest.” (§ 425.16, subd. (e)(3).) A second category is 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.” (Id., subd. (e)(4).) McEntyre contends that the lawsuit arises from protected activity under these categories because her posts were made on Facebook, a public forum,[4] and concerned alcohol and drug rehabilitation, a matter of public interest.

To determine whether statements concern an issue of public interest, we first ask what public issue or public interest is implicated by looking to the content of the speech. (FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 140 (FilmOn.com).) “Second, we ask what functional relationship exists between the speech and the public conversation about some matter of public interest. It is at the latter stage that context proves useful.” (Id. at pp. 149–150.) Context includes the speaker’s identity, the audience, and the purpose of the speech. (Id. at p. 140.) Courts thus look to whether the subject of the speech or activity was in the public eye, the statement could affect large numbers of people beyond the direct participants, the activity occurred in the context of an ongoing controversy, dispute or discussion, or affected a community in a manner similar to that of a governmental entity. (Id. at pp. 145–146; accord, Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 621 [these nonexclusive, sometimes overlapping categories of statements, fall under § 425.16, subd. (e)(4)].) Whether a statement “was private or public, to whom it was said, and for what purpose” bears on whether it was made in furtherance of free speech in connection with a public issue. (FilmOn.com, at p. 148.) And there must be some degree of closeness between the statements and the asserted public interest, meaning it must contribute to public debate. (Id. at pp. 150, 154.) The focus is on the specific nature of the speech and not generalities that may be abstracted from it. (Id. at p. 152; accord, Rand Resources, at p. 625 [“At a sufficiently high level of generalization, any conduct can appear rationally related to a broader issue of public importance. What a court scrutinizing the nature of speech in the anti-SLAPP context must focus on is the speech at hand, rather than the prospects that such speech may conceivably have indirect consequences for an issue of public concern.”].)

Applying FilmOn.com’s two-step approach, Yang v. Tenet Healthcare Inc. (2020) 48 Cal.App.5th 939 (Yang), considered whether statements made by a medical entity and medical professionals about a doctor’s qualifications, competence, and medical ethics constituted protected activity. Those statements included ones that the doctor was unqualified and incompetent to perform certain surgeries, her ethics were below standards, and she was dangerous to patients. The statements were made during a peer review process but were also disseminated outside that process to patients and the general public. (Id. at pp. 943, 947.) The court held that whether “a licensed physician is deficient in such characteristics” is a public issue. (Ibid.; accord, Healthsmart Pacific, Inc. v. Kabateck (2016) 7 Cal.App.5th 416, 429 [the public, as a consumer of medical services, has an interest in issues concerning doctors and health care facilities]; cf., Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 898–900 [warning not to use insurance broker was “ostensibly provided to aid consumers” choosing brokers, so was a matter of public concern].) In reaching this holding, Yang first noted that the statements were communicated to the public and not just to discrete members of the medical community. Such speech to the public about a doctor’s qualifications furthered public discourse on that subject. (Yang, supra, 48 Cal.App.5th at p. 948.) Second, the court found that a directive not to refer patients to the doctor was akin to a third party’s statement to aid consumers and directly contributed to public discourse. (Ibid.) “Given that statements aimed at protecting groups of consumers have been viewed as sufficiently broadly applicable to be protected, we think it clear that statements aimed at protecting members of the public who might see a doctor are sufficiently broadly applicable.” (Id. at p. 949.)

Yang disagreed with Dual Diagnosis Treatment Center, Inc. v. Buschel (2016) 6 Cal.App.5th 1098 (Dual Diagnosis), the main case on which plaintiffs here rely.[5] Plaintiff Dual Diagnosis offered mental health, substance abuse, and dual diagnosis disorder treatment in its facilities. (Id. at p. 1101.) The defendant published a newsletter about alcohol and drug treatment that was disseminated to the medical and general community. In one newsletter, the defendant republished an article stating that a doctor who had been stripped of his medical license for running unethical drug trials on mentally ill patients was now running an unlicensed rehabilitation facility for the mentally ill, and Dual Diagnosis was being investigated for running an unlicensed residential treatment program. (Id. at pp. 1101–1102.)

Dual Diagnosis, supra, 6 Cal.App.5th at page 1104, found that the statement did not concern an issue of public interest. In making that finding, the court considered whether: the conduct involved a large, powerful private organization that may impact many lives, the statement’s subject was in the public eye, the statement implicated conduct that could affect people beyond the direct participants, or involved a topic of widespread, public interest. (Ibid.) Distilling the statement to being about a single rehabilitation facility’s unlicensed status, the court found that such status was not a matter of widespread, public interest. (Ibid.) The court said there was no showing that the facility impacted a broad segment of society or was part of some large goal to provide consumer protection information.

The court also criticized the defendant’s characterization of the matter as one of public interest in addiction treatment and how treatment facilities operate. (Dual Diagnosis, supra, 6 Cal.App.5th at p. 1106.) “Almost any statement, no matter how specific, can be construed to relate to some broader topic,” which is the “ ‘synecdoche theory of public issue in the anti-SLAPP statute.’ ” (Ibid.) The “focused nature” of the statements at issue did not concern treatment and rehabilitation facilities in general or even all of Dual Diagnosis’s facilities. (Ibid.)

Dual Diagnosis is distinguishable from the case before us, and, moreover, predated our Supreme Court’s more recent pronouncements in FilmOn.com about how to evaluate whether statements implicate a public interest. Under FilmOn.com, we first examine the content of McEntyre’s statements to see what public issue or interest is implicated. As to that, plaintiffs try to narrowly define her statements as concerning the licensing of a single facility. However, similar to the statements in Yang, the statements here more broadly implicated Creative Care’s qualifications and competence. McEntyre, for example, implored Dr. Phil to stop saying Creative Care was a “great place,” called the facility a “dangerous place,” and said its license had been suspended so “DO NOT listen to Dr. Phil.” By these statements, McEntyre was raising issues about Creative Care’s qualifications and competence, warning consumers the facility was not safe. If, as in Yang, a single doctor’s qualifications and competence are a matter of public interest, then an entire facilities’ qualifications and competence surely also so qualify. (See, e.g., Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 201 [conduct of licensed physicians is matter of public significance]; Healthsmart Pacific, Inc. v. Kabateck, supra, 7 Cal.App.5th at p. 429.)

Second, we examine the functional relationship between the speech and the matter of public interest, paying attention to the context in which McEntyre made her statements. (See, e.g., FilmOn.com, supra, 7 Cal.5th at p. 140.) McEntyre is a public safety advocate and founder of a nonprofit watchdog organization that monitors and exposes inefficient, unsafe, and illegal practices in facilities. Since 2012, she has been on an advisory council of the California Department of Alcohol and Drug Programs, and she is on the steering committee of Advocates for Responsible Treatment. Further, she has worked with state legislators on legislation relating to alcohol and drug treatment and rehabilitation issues. Given all this, McEntyre established that she made the statements as a consumer advocate. (See, e.g., Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 24 [website containing advice and information for readers to share plastic surgery experiences contributed to debate about cosmetic surgery].)

Her statements were made on a widely known and used social media platform and were directed to the general public and to Dr. Phil, who himself commands a public television audience. (See Grenier v. Taylor (2015) 234 Cal.App.4th 471, 481–483, [allegedly defamatory Internet posting to a church having 550–1,000 members was large enough to qualify as community for purposes of § 425.16].) Thus, the statements were communicated to the public and not just to a discrete group of people, and, moreover, targeted an audience interested in mental health issues via Dr. Phil. (See, e.g., Thomas v. Quintero (2005) 126 Cal.App.4th 635, 661 [defendant’s demonstrations and flyer concerning plaintiff’s wrongful evictions and retention of security deposits of more than 100 tenants constituted public issue]; see also FilmOn.com, supra, 7 Cal.5th at p. 153 [reports issued to paying clients and not to public, so information did not and was not intended to enter public sphere]; Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871 [employer’s statement that employee committed plagiarism was private and not part of public discussion about media honesty]; Murray v. Tran (2020) 55 Cal.App.5th 10, 30–32 [because statements about dentist’s subpar work were private and not disseminated to public, FilmOn.com’s second prong not met].)

The purpose of McEntyre’s speech was to inform consumers about using Creative Care by trying to get Creative Care’s most visible and public advocate—Dr. Phil—to stop supporting and advertising its services. (See, e.g., Yang, supra, 48 Cal.App.5th at p. 948 [“telling doctors to not refer patients to Yang is akin to consumer protection information”]; Murray v. Tran, supra, 55 Cal.App.5th at pp. 34–35 [statements to dentist’s current employer about dentist’s substandard care promoted public conversation]; Gilbert v. Sykes, supra, 147 Cal.App.4th at p. 23 [assertion that prominent plastic surgeon produced nightmare results contributed to public discourse about plastic surgery].)

Further, although plaintiffs dispute that the health care they provided was of widespread interest, Dr. Khaleghi declared that Creative Care had helped thousands of people, and mental health care professionals around the world hold it in high regard and trust Creative Care with their patients. Also, Creative Care has an over 15-year relationship with the Dr. Phil show, and Dr. Khaleghi appeared on the show to give information about Creative Care’s substance abuse and mental health treatment programs. Dr. Khaleghi thus declared, “Dr. Phil frequently referred the Creative Care program to his viewers,” and many participants and viewers of the show sought treatment at Creative Care. Therefore, Creative Care was part of the public discussion of mental health issues.

We conclude that McEntyre met her burden on the statute’s first prong to show her statements were made in a public forum on a matter of public interest. Having done so, we turn to the statute’s second prong, whether plaintiffs met their burden of establishing a probability of prevailing on their causes of action.

III. Probability of prevailing

Plaintiffs had the burden of demonstrating a probability of prevailing on their defamation, emotional distress, and interference with prospective economic advantage causes of action. For the purposes of section 425.16, plaintiffs had to make a prima facie showing of facts which would, if proved at trial, support a judgment in their favor. (Alpha & Omega Development, LP v. Whillock Contracting, Inc. (2011) 200 Cal.App.4th 656, 663–664.)

Because each of the causes of action at issue fail or survive based on whether McEntyre made a defamatory statement, we first focus on defamation. Defamation is “a false and unprivileged publication” that exposes a person “to hatred, contempt, ridicule, or obloquy,” or which causes a person to be shunned or avoided, or which tends to injure a person in his occupation. (Civ. Code, § 45.) A plaintiff alleging defamation must establish “ ‘(1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.’ ” (Sanders v. Walsh (2013) 219 Cal.App.4th 855, 862; see also Hawran v. Hixson (2012) 209 Cal.App.4th 256, 277 [elements of false light defamation claim are identical to elements of defamation claim].) Defamation thus requires the existence of a falsehood, so a defamation claim will fail unless the challenged statement can be reasonably understood to express or imply a provably false assertion of fact. (Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 19–20.) Therefore, statements that cannot reasonably be interpreted as stating actual facts about an individual or entity that are provably false cannot form the basis of a defamation action. (Ferlauto v. Hamsher (1999) 74 Cal.App.4th 1394, 1401.) Accordingly, rhetorical hyperbole, vigorous epithets, imaginative expressions of contempt, and loose, figurative language are constitutionally protected. (Ibid.)

To ascertain whether challenged statements are provably false factual assertions, courts consider the totality of circumstances—i.e., “the meaning of the language in context and its susceptibility of being proved true or false.” (Moyer v. Amador Valley J. Union High School Dist. (1990) 225 Cal.App.3d 720, 725 (Moyer); GetFugu, Inc. v. Patton Boggs LLP (2013) 220 Cal.App.4th 141, 156.) In evaluating defamation claims, we distinguish between “verifiable facts” and “subjective judgments.” (Moyer, at p. 725.) The essential difference between a statement of fact and one of opinion is the former implies a provably false factual assertion while the latter does not. (Gallagher v. Connell (2004) 123 Cal.App.4th 1260, 1270.) For example, saying a person is “ ‘ “extremely rude” ’ ” is not a factual assertion capable of being proven true or false but instead is a subjective judgment and therefore not defamatory. (Ibid.)

Applying this law, no provable assertion of fact is apparent in McEntyre’s first post, which said, “SHAME ON YOU CREATIVE CARE!!! SHAME ON YOU DR. PHIL! STOP TELLING PEOPLE THAT CREATIVE CARE IS A GREAT PLACE!!!”[6] Whether Dr. Phil is deserving of shame and placing shame on him are not factual assertions susceptible to proof or disproof. (See, e.g., James v. San Jose Mercury News, Inc. (1993) 17 Cal.App.4th 1, 19.) And whether Creative Care is a great place, or a bad one, is a matter of subjective opinion. (See, e.g., Reed v. Gallagher (2016) 248 Cal.App.4th 841, 847 [statement, “ ‘Legal records show that Reed is an unscrupulous lawyer’ ” did not declare or imply provably false statement of fact].) Further, plaintiffs admit that the accompanying photograph of a coroner’s van accurately showed the coroner responding after a patient overdosed on Fentanyl at the facility.

Next, the FAC referred to a post about there being hundreds of clients daily, 30 vehicles, and emergency weekly activity at the Woodland Hills facility. However, even though they made this allegation, plaintiffs did not submit evidence that McEntyre posted such a statement.[7] A plaintiff may not rely on their allegations but must submit evidence to establish the claim.[8] (Alpha & Omega Development, LP v. Whillock Contracting, Inc., supra, 200 Cal.App.4th at p. 664.) Even if the post was inaccurate, it does not rise to the level of defamation. At most, the statement infers that Creative Care is not a good neighbor, which might be of concern to the neighborhood but does not reflect on the care the facility provides.

On December 25, 2019, McEntyre next posted what she called a public service announcement, advising that DHCS had the week before suspended Creative Care’s license for the facility in Woodland Hills and that Dr. Phil had been so informed but was being willfully ignorant. The post thus implored people not to send loved ones to Creative Care. Her last post in January 2020 also referred to the lack of a license and asked Dr. Phil to stop referring people to this “dangerous place.”

In fact, Creative Care’s license had been suspended in mid-December 2019. The trial court took judicial notice of DHCS’s accusation, which said Creative Care’s license to practice residential detoxification services and substance abuse treatment was temporarily suspended. In response, plaintiffs take issue with the trial court’s evidentiary ruling that it would consider the accusation to the extent it explained the basis for McEntyre’s statements. We see no error. In any event, the trial court reviewed DHCS’s website and took judicial notice of the suspension under Evidence Code section 452, subdivision (c), which concerns official acts of legislative, executive, and judicial departments of any state. Plaintiffs make no valid argument why this was improper. Instead, they argue that their due process rights are being denied because they are entitled to a hearing on the accusation. Regardless of whether plaintiffs had a due process right to a hearing on the accusation, it is unclear how any such right is relevant to this separate, anti-SLAPP proceeding or implicated by the evidentiary ruling.

Moreover, although Dr. Khaleghi generally said that Creative Care has never operated in violation of any licensing law, he never specifically denied that Creative Care’s license was suspended in mid-December 2019. Instead, Dr. Khaleghi danced around this issue. He declared, “For many years, Creative Care provided residential substance abuse treatment services at licensed six-bed facilities. Since mid-December 2019, Creative Care has provided substance abuse treatment services on an outpatient basis only. Its six-bed residential substance abuse treatment facilities in Woodland Hills, California became sober living homes at that time. Now, Creative Care provides substance abuse treatment services at its outpatient facilities,” and no license is required for sober living homes or outpatient facilities. (Italics added.) Mid-December 2019 is when DHCS suspended Creative Care’s residential license; yet, Dr. Khaleghi does not explain why, at that time, Creative Care switched from offering residential services to outpatient ones. Plaintiffs further admit in their reply that Creative Care’s license was temporarily suspended. The evidence therefore is that Creative Care’s license was suspended. Accordingly, McEntyre’s statement about the license was at least substantially true. (See, e.g., Reed v. Gallagher, supra, 248 Cal.App.4th at p. 861 [slight inaccuracies in details will not render substantially true statement defamatory]; see James v. San Jose Mercury News, Inc., supra, 17 Cal.App.4th at pp. 12–13 [although attorney’s professional reputation was impugned by statements calling him sleazy and unethical, proper test was whether reasonable fact finder could conclude publication as a whole, or any of its parts, directly made or sufficiently implied a false assertion of defamatory fact tending to injure reputation].)

III. The remaining causes of action similarly fail.

Given our conclusion that McEntyre did not make a defamatory statement, the remaining causes of action similarly fail because they require some kind of wrongful conduct or act. (See generally Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007 [intentional infliction of emotional distress requires extreme and outrageous conduct]; Friedman v. Merck & Co. (2003) 107 Cal.App.4th 454, 463–464 [negligent infliction of emotional distress requires duty (usually arising in context of special relationship), breach, causation and damages]; Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153 [intentional interference with economic advantage requires wrongful act or conduct].) Because we have found that McEntyre made no actionable defamatory statement, these causes of action also fail.

IV. Attorney fees and costs

Plaintiffs cursorily argue that the attorney fees award should be reversed because McEntyre’s counsel’s $550 hourly rate was unreasonable, and the motions did not identify any amount sought or basis for the amount sought. We generally review an order granting attorney fees for abuse of discretion. (Concepcion v. Amscan Holdings, Inc. (2014) 223 Cal.App.4th 1309, 1319.) With respect to the amount of fees awarded, our review is highly deferential to the trial court’s views. (Ibid.)

Plaintiffs first argue that the $550 hourly rate is unreasonable because McEntyre’s counsel raised faulty legal arguments. This does not negate the reasonableness of the rate. In the absence of a showing of bad faith, litigants may raise alternative legal grounds for a desired outcome, and the trial court’s rejection of them is not sufficient reason to reduce a fee award. (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1303.) Plaintiffs’ second reason why the rate is unreasonable is based on counsel having been disciplined in the past. In the absence of any showing how that discipline is connected to this case, we decline to penalize counsel.

Further, plaintiffs incorrectly contend that McEntyre’s counsel failed to specify the amount requested and what he did to incur it. Counsel declared that he spent $12,375 in attorney fees and $495 in costs preparing the anti-SLAPP motion as to Dr. Khaleghi and $1,100 in attorney fees and $60 in costs as to Creative Care. The total therefore was $14,030, the amount the trial court awarded. Counsel further detailed the tasks he performed and the time spent on each; for example, he spent one and a quarter hour reviewing the complaints, four hours researching, six hours drafting the motion, and one and a half hours preparing a reply.

Accordingly, we discern no abuse of discretion.

DISPOSITION

The order is affirmed. Defendant may recover her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EDMON, P. J.

We concur:

LAVIN, J.

ADAMS, J.*

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

[2] Instead of filing just one anti-SLAPP motion, McEntyre filed two motions, one directed to causes of action asserted by both plaintiffs and the second directed to causes of action asserted by only Dr. Khaleghi. McEntyre’s anti-SLAPP motions were directed to the FAC, with which she claimed she was never served. Plaintiffs therefore argue that McEntyre should have directed her motions to the original complaint, and by directing them to the FAC, the motions were untimely. That is, a special motion to strike shall be filed within 60 days of service of the complaint or at any later time in the court’s discretion. (§ 425.16, subd. (f).) McEntyre filed her motions more than 60 days after the complaint was served. In its ruling, the trial court did not address this issue, thereby impliedly finding that the motions were timely. The trial court also likely found it unnecessary to address the issue because, although McEntyre maintained in her motions that she had not been served with either the complaint or the FAC, she said she was voluntarily submitting to the court’s jurisdiction. By so submitting, McEntyre was clearly accepting service of the FAC and responding via the special motion to strike to it.

[3] In addition to posts mentioned in the FAC, plaintiffs submitted as exhibits an additional undated post of a photograph of a man McEntyre called, “Dr. Frank Lawless,” a “consultant at Creative Care.” She added, “This is Dr. PHIL’s go to guy. https://www.creativecareinc.com.” In a separate post, she said, “Please Dr. PHIL. STOP ENDORSING Creative Care. Please contact me at 805.300.4727 and I will supply you with all the data to support my facts. I have attempted many times to reach you to no avail. Perhaps if it is not just me tapping on your shoulder you will respond?”

[4] There is no dispute that McEntyre made her statements in a public forum, Facebook. (See, e.g., Cross v. Facebook, Inc. (2017) 14 Cal.App.5th 190, 199.)

[5] In ruling on the anti-SLAPP motion, the trial court below declined to follow Dual Diagnosis.

[6] This post was cited in the original complaint but not in the FAC, and it would therefore appear that plaintiffs no longer claim it is one of the statements forming the basis for its claim. We nonetheless address it because it provides some context to the posts as a whole.

[7] Perhaps this is why the trial court did not address this alleged post in its ruling.

[8] Dr. Khaleghi simply stated in his declaration that “except in extremely unusual circumstance[s],” which he could not recall occurring, there were never 30 vehicles on Creative Care’s property, Creative Care did not have hundreds of clients daily, and emergency activity occurred but rarely.

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.