Filed 9/30/26 Wave Plastic Surgery Center v. Kim CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
WAVE PLASTIC SURGERY B339455 & B341006
CENTER, INC.,
Los Angeles County
Plaintiff and Appellant, Super. Ct. No. 23STCV29954
v.
TINA KIM,
Defendant and Respondent.
CONSOLIDATED APPEALS from orders of the Superior
Court of Los Angeles County, Maureen Duffy-Lewis, Judge.
Reversed and remanded.
Tredway Lumsdaine & Doyle, Shannon M. Jenkins; Omer
A. Khan for Plaintiff and Appellant.
Zermay Law, Zachary Z. Zermay for Defendant and
Respondent.
_________________________
Plaintiff and appellant WAVE Plastic Surgery Center, Inc.
(WAVE) appeals an order granting defendant and respondent
Tina Kim’s special motion to strike and a related order awarding
Kim her attorney fees and costs. WAVE contends the statements
Kim posted about WAVE on social media were not made in
connection with an issue of public interest. We agree. We
consequently reverse both orders and remand.
I.
Kim has an online presence with more than 86,000
followers on the social media platform TikTok. On the morning
of November 7, 2023, Kim entered the Los Angeles office of
WAVE, a plastic surgery and laser treatment center, as if she
were a prospective walk-in customer. Surveillance footage from
within the center’s reception area shows Kim entered the office,
was greeted by the front desk staff, and exited the premises four
minutes after entering.
Later that day, Kim uploaded a video to her TikTok
account narrating her visit to WAVE. Kim starts the video by
cautioning her viewers not to go to WAVE’s Los Angeles location.
Kim states that, when she entered WAVE’s reception area, none
of the three front desk staff greeted her, and instead ignored her
as she stood there for “like almost 15 minutes.” Eventually, says
Kim, she decided to leave, and as she did so, she told the front
desk staff they had the “worst customer service” and warned, “I’m
an influencer so you guys just got the worst review.” Kim says
WAVE was a “horrible, horrible place” where she was treated
“wors[e] than any place [she had] ever walked into.” Kim tells
her viewers, “they might have great doctors there,” but her
review solely concerns “the customer service [she] received” at the
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front desk. Kim concludes by declaring WAVE is a “thumbs
down.”
Within a month of its posting, Kim’s TikTok video garnered
more than 50,000 views, nearly 2,000 “likes,” and hundreds of
comments, many disparaging WAVE.
WAVE sued Kim. It alleged five causes of action stemming
from the video, including slander per se, slander per quod, libel
per se, libel per quod, and false light.
Kim responded with a special motion to strike the
complaint under California’s statute limiting “SLAPPs” (Strategic
Lawsuits Against Public Participation), which calls for early
dismissal of meritless lawsuits if they arise from acts in
furtherance of petitioning or free speech rights in connection with
a public issue. (See Code Civ. Proc., § 425.16, subds. (b)(1),
(e)(1)–(4).) (Further undesignated statutory references are to the
Code of Civil Procedure.) Kim argued WAVE’s claims arose from
statements made in a public forum concerning an issue of public
interest, constituting protected activity under the anti-SLAPP
statute. She further asserted WAVE could not demonstrate its
claims had minimal merit, because her statements were non-
actionable opinions. WAVE opposed Kim’s motion.
After a hearing, the trial court granted Kim’s anti-SLAPP
motion in its entirety. Its full analysis on the statute’s
applicability was that Kim “meets her burden to show that the
claim or causes of action arise from the furtherance of the right to
petition or free speech,” citing Gilbert v. Sykes (2007)
147 Cal.App.4th 13, 23–24 (Gilbert). The court also concluded
WAVE could not show its claims had sufficient merit. WAVE
timely appealed this order.
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Meanwhile, Kim filed a motion for attorney fees and costs,
which the court granted. WAVE has also timely appealed this
order.
We consolidated the two appeals for briefing, argument,
and decision.
II.
The Legislature enacted section 425.16, the anti-SLAPP
statute, to “combat lawsuits designed to chill the exercise of free
speech and petition rights.” (Park v. Board of Trustees of
California State University (2017) 2 Cal.5th 1057, 1060 (Park).)
To that end, the statute provides 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).) Acts furthering the right of free speech,
as relevant here, include “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” and any conduct
furthering “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)(3), (4).)
An anti-SLAPP motion calls for a two-step analysis. “First,
‘the moving defendant bears the burden of establishing that the
challenged allegations or claims “aris[e] from” protected activity
in which the defendant has engaged.’ ” (Bonni v. St. Joseph
Health System (2021) 11 Cal.5th 995, 1009.) If the defendant
fails to meet her burden on this first step, the court should deny
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the motion and need not address the second step. (Symmonds v.
Mahoney (2019) 31 Cal.App.5th 1096, 1103−1104.) But, “for each
claim that does arise from protected activity, the plaintiff must
show,” at the second step, “the claim has ‘at least “minimal
merit.” ’ [Citation.] If the plaintiff cannot make this showing,
the court will strike the claim.” (Bonni, at p. 1009.)
“We review de novo the grant or denial of an anti-SLAPP
motion” and “exercise independent judgment in determining
whether, based on our own review of the record, the challenged
claims arise from protected activity.” (Park, supra, 2 Cal.5th at
p. 1067.) However, the “appellant still bears the ‘ “burden of
affirmatively demonstrating error.” ’ ” (Balla v. Hall (2021)
59 Cal.App.5th 652, 671.)
A.
Kim has not made a sufficient first-prong showing that her
TikTok statements were in connection with a public issue or issue
of public interest.
There is no dispute Kim’s TikTok statements were in a
public forum. (See Muddy Waters, LLC v. Superior Court (2021)
62 Cal.App.5th 905, 917 [postings on internet websites open to
and freely accessible by the public satisfy the public forum
requirement of section 425.16, subdivision (e)(3)].) But
statements made in public do not necessarily concern an issue of
public interest meriting protection under the anti-SLAPP statute.
On appeal, Kim pursues the lone basis for concluding her
statements concern an issue of public interest on which the trial
court relied through its invocation of Gilbert. That is, she
contends her statements concerned “[c]onsumer information
about a medical services business,” and fall under the umbrella of
“public-facing reviews and warnings about the quality of goods or
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services” that serve to “inform consumers’ decision-making and
invite public discussion.” WAVE, in contrast, argues the true
subject of Kim’s social media statements — the supposed
rudeness of its reception staff — is not an issue of public interest,
and therefore the statements are not protected under the anti-
SLAPP statute. WAVE has the better view.
Our Supreme Court has advised courts to conduct a two-
part analysis to assess whether speech is in connection with an
issue of public interest. (FilmOn.com Inc. v. DoubleVerify
Inc. (2019) 7 Cal.5th 133, 149 (FilmOn).) “First, we ask what
‘public issue or . . . issue of public interest’ the speech in question
implicates . . . . Second, we ask what functional relationship
exists between the speech and the public conversation about
some matter of public interest.” (Id. at pp. 149−150.)
“[S]tatements found to implicate a public issue generally
‘concern[] a person or entity in the public eye[,] . . . conduct that
could directly affect a large number of people beyond the direct
participants[,] . . . or a topic of widespread, public interest.’ ”
(Geiser v. Kuhns (2022) 13 Cal.5th 1238, 1248 (Geiser).) But “it is
not enough that the statement refer to a subject of widespread
public interest; the statement must in some manner itself
contribute to the public debate.” (Wilbanks v. Wolk (2004)
121 Cal.App.4th 883, 898 (Wilbanks); FilmOn, supra, 7 Cal.5th at
p. 150.) The fact that “ ‘a broad and amorphous public interest’ ”
can be connected to a specific dispute is insufficient (Dyer v.
Childress (2007) 147 Cal.App.4th 1273, 1280); there must be a
certain “degree of closeness” between the challenged statements
and the specific asserted public interest (Weinberg v. Feisel (2003)
110 Cal.App.4th 1122, 1132 (Weinberg)).
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We find instructive this division’s decision in Woodhill
Ventures, LLC v. Yang (2021) 68 Cal.App.5th 624, depublication
den. and review den. Dec. 15, 2021, S271573. There, a mother
ordered a mad-science themed cake from a bakeshop for her son’s
seventh birthday party. (Id. at pp. 626−627.) When the cake
arrived, the mother and her husband, Yang, a self-proclaimed
celebrity jeweler, disliked the realism of the fondant-made pills
that adorned the confection. (Ibid.) They also disliked what they
considered the bakeshop’s rude reaction when they complained.
(Id. at p. 628.) Yang began criticizing the bakeshop online to his
1.5 million social media followers and on his podcast, accusing
the bakeshop of putting “drugs” on his son’s birthday cake,
asserting the bakeshop staff “were rude, talked crazy shit,
blamed my wife and hung up on me,” and stating he would “make
sure nobody I know or who knows me ever does business with
idiots such as your business.” (Id. at pp. 627–630.) The bakeshop
sued Yang, alleging libel and slander, among other causes of
action. (Id. at p. 629.) Yang filed a special motion to strike,
which the trial court denied, finding none of his statements
involved issues of public interest. (Id. at p. 630.)
We affirmed the trial court’s denial. (Woodhill, supra,
68 Cal.App.5th at p. 630.) We concluded Yang’s statements that
insulted, name-called, and threatened the bakeshop were “ ‘too
tenuously tethered’ ” to Yang’s proffered public issue of “ ‘candy
confusion’ ” and “ ‘too remotely connected to the public
conversation about’ ” that issue to merit protection under the
anti-SLAPP statute. (Id. at pp. 630, 632.) Yang’s statements
“did not discuss the danger of children confusing medications for
candy. That was not Yang’s point. Yang’s statements did not
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seek public discussion of anything. They aimed to whip up a
crowd for vengeful retribution.” (Id. at pp. 632−633.)
We also rejected Yang’s argument that his statements
involved the public interest because they provided consumer
protection information. (Woodhill, supra, 68 Cal.App.5th at
p. 634.) We noted that, although courts have “recognized the
growth of consumerism in the United States and have
acknowledged the importance of public access to consumer
information,” court decisions generally extended protection only
“when the ‘consumer information’ goes beyond recounting a one-
time dispute between a buyer and a seller.” (Ibid.) Not every
comment about a person or business was connected to a public
issue. (Id. at p. 636.) Yang’s statements to his followers, we
concluded, related solely to a single interaction with the
bakeshop and “did not give consumers information beyond his
complaints about his one cake order.” (Id. at p. 634.) Yang “did
not like the cake and he did not like the service. Those are not
issues of public interest.” (Id. at p. 636.) We thus concluded
Yang’s statements to his followers did not qualify for protection
under the consumer protection umbrella. (Ibid.)
Considerations similar to those that led Woodhill to
conclude Yang’s statements did not concern a public issue lead us
to reach the same conclusion about Kim’s statements here. Kim’s
statements do not implicate medical services or broader issues
regarding plastic surgery. Kim was not a WAVE patient, and her
statements only touched on one assertedly underwhelming
interaction with WAVE’s receptionists, akin to the rudeness Yang
asserted in Woodhill. And Kim’s remarks, like Yang’s, do not
implicate an issue of public interest, even though she, like Yang,
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shared her dislike with a large following on social media rather
than a few friends over the telephone or over lunch.
Though Gilbert, supra, 147 Cal.App.4th 13, on which both
the trial court and Kim rely, relates to plastic surgery, it is
distinguishable in vital respects. There, a patient, Gilbert,
dissatisfied with plastic surgery she had received from a certain
surgeon, created a website that described her experience and
provided advice on how to choose a plastic surgeon. The website
included thoughts on plastic surgery in general, links to other
resources, and a contact page inviting readers to discuss their
own plastic surgery experiences. (Id. at pp. 17−18, 24.) The
appellate court found Gilbert’s website was not limited to
Gilbert’s interactions with the surgeon but instead included
extensive resources and advice “contribut[ing] to the general
debate over the pros and cons of undergoing cosmetic surgery,”
where such surgery was of “widespread public interest and
discussion.” (Id. at pp. 23, 24.) Gilbert therefore concluded the
website and its contents constituted protected activity under the
anti-SLAPP statute. (Id. at p. 24.) Kim’s statements are unlike
Gilbert’s. Neither Kim’s experience nor her video concerned the
quality of WAVE’s plastic surgery providers, let alone furthered
the kind of discussion Gilbert furthered.
The other cases Kim cites, which all happen to pre-date
FilmOn’s elucidation of when speech is in connection with a
public issue, do not support her position.
In Summit Bank v. Rogers (2012) 206 Cal.App.4th 669, a
publicly-traded banking corporation sued its former employee for
posting, online, messages “questioning the Bank’s financial
stability and its management decisions.” (Id. at pp. 677, 694.)
The appellate court concluded the statements concerned an issue
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of public interest, as “in the wake of the 2008 economic downturn,
which ushered in widespread skepticism in the underlying
financial strength of our country’s financial institutions, there
has been a profound public interest in the financial world,” and
“the financial stability of our banking system is a legitimate
object of constitutionally protected public commentary,
discussion, criticism, and opinion.” (Id. at p. 694.) Kim’s
reception at WAVE’s plastic surgery facility is distinguishable.
Nygård, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027,
stated that an issue of public interest for the purposes of anti-
SLAPP protection is “any issue in which the public is interested.”
(Id. at p. 1042, italics omitted.) However, as our colleagues in
Division Seven have observed, “Nygård’s sweeping
pronouncement, made 11 years before FilmOn, is at odds with
the Supreme Court’s caution that determining whether the
subject of speech or other conduct constitutes a matter of public
interest requires an evaluation of specific contextual
considerations.” (Musero v. Creative Artists Agency, LLC (2021)
72 Cal.App.5th 808, 822, fn. 8; see Weinberg, supra,
110 Cal.App.4th at p. 1132 [“ ‘public interest’ does not equate
with mere curiosity”].) Various factors contribute to whether a
statement implicates a public interest (Geiser, supra, 13 Cal.5th
at p. 1248); content and context determine whether commentary
about a business falls under the anti-SLAPP statute’s protection.
(Woodhill, supra, 68 Cal.App.5th at pp. 634–636; see Bernstein v.
LaBeouf (2019) 43 Cal.App.5th 15, 24 [an “ ‘unremarkable,’ ”
“isolated,” “private dispute” with a business does not “become a
matter of public interest simply because it was widely
communicated to the public” and involved a celebrity]).
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In Wilbanks, a consumer watchdog who had worked in,
researched, and written books on a certain industry published a
website devoted to providing consumer protection information
about that industry. (Wilbanks, supra, 121 Cal.App.4th at
pp. 889, 900.) The statements at issue identified life-insurance
buyout brokers the website creator believed practiced their
business unethically and should be avoided. (Id. at p. 900.) In
holding such statements constituted protected speech concerning
an issue of public interest, Wilbanks noted the statements were
“not simply a report of one broker’s business practices, of interest
only to that broker and to those who had been affected by those
practices,” but rather consumer protection information that
“contribute[d] to the public debate” by aiding consumers in
selecting a competent and ethical broker. (Id. at pp. 898, 900.)
Kim’s statements, in contrast, involved a review of one brief
instance of assertedly withheld customer service. Like Summit
and Nygård, then, Wilbanks does not support Kim.
In sum, Kim’s statements on TikTok do not qualify as
speech concerning an issue affecting the public interest for
purposes of anti-SLAPP protection. Kim’s statements may have
been seen, similar to those of the online personality in Woodhill,
by hundreds of thousands of people, but if “[s]houting makes the
volume loud,” it does not turn Kim’s reception gripe into an issue
of public interest under the anti-SLAPP statute. (Woodhill,
supra, 68 Cal.App.5th at p. 633.)
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B.
Because we have found Kim failed to meet her burden of
proving her statements were protected activity under the first
prong of the anti-SLAPP statutory analysis, we need not address
the second step of determining whether WAVE has established a
likelihood of prevailing on any of its claims. (City of Cotati v.
Cashman (2002) 29 Cal.4th 69, 80−81.)
C.
Because we reverse the court’s order granting Kim’s anti-
SLAPP motion, we must also reverse the award of attorney fees
and costs under section 425.16, subdivision (c)(1). Kim is no
longer a prevailing defendant. (See Ulkarim v. Westfield LLC
(2014) 227 Cal.App.4th 1266, 1282; Cole v. Patricia A. Meyer &
Associates, APC (2012) 206 Cal.App.4th 1095, 1123.)
D.
We deny WAVE’s November 6, 2025 request for judicial
notice, as none of the documents included are relevant to our
decision, but instead are extra-record materials on which the trial
court did not rely and only pertain to one of WAVE’s alternative
arguments for reversal. (Doe v. City of Los Angeles (2007)
42 Cal.4th 531, 544, fn. 4; Schifando v. City of Los Angeles (2003)
31 Cal.4th 1074, 1089, fn. 4.)
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DISPOSITION
We reverse the orders granting Kim’s anti-SLAPP motion
and Kim’s motion for attorney fees and costs, we award WAVE its
costs on appeal, and we remand for further proceedings.
SCHERB, J.
We concur:
STRATTON, P. J.
WILEY, J.
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