Ian Murray v. My Tran

Dr. My Tran and Dr. Ian Murray are dentists who owned a dental

practice known as Bird Rock Dental. Dr. Murray worked at the practice and

Dr. Tran handled the business operations through his own separate entity.

About two years after they formed the practice, they had financial disputes.

In the midst of these disputes, Dr. Tran accused Dr. Murray of substandard

dental work and published his claims to several individuals and groups,

mainly to people working for Dr. Tran, but also to Dr. Murray’s new employer

and to one retired dentist.

Both parties sued the other, and the lawsuits were consolidated. Dr.

Murray’s second amended complaint asserted 22 causes of action, two of

which are at issue in this appeal: defamation per se and defamation.

Dr. Tran and related entities moved to dismiss the two defamation

causes of action under the anti-SLAPP statute. (Code Civ. Proc, § 425.16.)1

The court found the defamation claims were governed by this statute, and Dr.

Murray did not meet his burden to show a probability of prevailing. The

court thus struck the two causes of action from the complaint. Dr. Murray

(and related entities) appeal.

We reverse in part and affirm in part. We conclude Dr. Murray alleged

five separate defamation claims for purposes of anti-SLAPP analysis, and Dr.

Tran met his burden to show only one of those claims alleged speech

protected under the anti-SLAPP statute: the alleged defamatory statements

to Dr. Murray’s new employer. As to that claim, Dr. Murray did not meet his

burden to show a probability of prevailing because he did not present

evidence that Dr. Tran in fact made these statements.

In reaching these conclusions, we analyze and apply the California

Supreme Court’s recently announced two-part test for evaluating whether

allegations trigger coverage under section 425.16, subdivision (e)(4) when the

statements concern the public interest but were not made in a public forum.

(FilmOn.com v. DoubleVerify, Inc. (2019) 7 Cal.5th 133 (FilmOn.com).)

FilmOn.com directs courts applying section 425.16, subdivision (e)(4) to

evaluate whether the alleged wrongful statements contributed to a public

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

discussion or conversation on the issue, and in conducting this inquiry to

evaluate the specific context in which the statements were made. Under this

test, we determine the alleged statements in four of the five asserted

categories of defamatory statements were not made in connection with a

public conversation or discussion of the issues and thus were not protected by

the anti-SLAPP statute.

On remand, the court shall vacate its order granting the anti-SLAPP

motion, and issue a new order denying the motion on all defamatory claims

except for the claims contained in Paragraphs 319 and 335 of Dr. Murray’s

second amended complaint.2

FACTUAL SUMMARY

We summarize the relevant facts in the light most favorable to Dr.

Murray, the party opposing the anti-SLAPP motion. (See Park v. Board of

Trustees of California State University (2017) 2 Cal.5th 1057, 1067 (Park).)

Our factual recitation is necessarily detailed because of the required

contextual analysis and the extensive factual record.

Background

In early 2015, Dr. Tran and Dr. Murray formed the Tran Murray

Dental Corporation (TMDC) to purchase an existing dental practice in Bird

Rock. Dr. Tran and Dr. Murray were TMDC’s only shareholders and

2 Although the defamation causes of action were asserted only by Dr.

Murray, Dr. Murray included his related entities (named in other portions of

the lawsuit) in opposing the anti-SLAPP motion and as parties to the appeal.

Our references to Dr. Murray include these related entities unless the context

indicates otherwise. Similarly, our references to Dr. Tran include his related

entities unless the context indicates otherwise. The distinctions between

each party and his related entities is not material for purposes of this appeal.

We note also that although the second amended complaint at issue is actually

a cross-complaint, it is labeled a complaint and we thus refer to it as such.

directors, and each owned 50 percent. Dr. Murray was responsible for

practicing dentistry for TMDC, and Dr. Tran was responsible for managing

TMDC’s business affairs from Las Vegas, where he lives. Dr. Tran did so

through his wholly owned companies, Streamline Dental Solutions, LLC and

Streamline Dental Solutions, CA, LLC (collectively Streamline). Dr. Tran

(through these entities) also owned or operated other dental practices outside

the San Diego area.

In Spring 2017, Dr. Tran and Dr. Murray had disputes over financial

issues pertaining to TMDC. The disputes were triggered when a former

TMDC dental assistant sued Streamline and Dr. Murray for wage and hour

violations. After this lawsuit was settled, Dr. Murray and Dr. Tran had

conflicts about funding the settlement and the attorney fees.

At about this same time, the parties and their joint attorney Jason

Wood were discussing a plan for Dr. Murray to make an asset purchase of the

dental practice from Dr. Tran. During these discussions, Dr. Murray began

questioning certain financial practices by Dr. Tran.

In July, Dr. Murray told Dr. Tran he wanted to buy his interest in

TMDC, instead of agreeing to Dr. Tran’s asset purchase plan. In the first two

weeks of August, the parties continued to disagree about business matters,

such as the timing of Dr. Murray’s buyout and Dr. Tran’s purported failure to

deposit funds to cover the costs of the employee lawsuit. Dr. Tran then

ordered Streamline to withhold Murray’s monthly pay and also claimed

(through attorney Wood) that Murray had been overcompensated in the

amount of $164,944.22 primarily because laboratory fees had not been

deducted from his pay. Dr. Murray responded that he had never agreed to

this deduction.

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On August 12, Dr. Murray wrote to Dr. Tran questioning payments

made to him of about $38,000, and asserting the parties had not agreed to

allow Dr. Tran to use his capital investment to meet his deposit obligations.

Two days later, Dr. Tran responded to Dr. Murray with a lengthy letter

that began: “At this stage, you’ve pushed our relationship into a nosedive.”

Dr. Tran then detailed his view of the parties’ financial disputes, and

asserted that if Dr. Murray did not make “significant progress with your

financing, we will provide you notice with our intention of buying you out.”

Four days later, on Friday afternoon August 18, at 4:38 p.m., Dr.

Murray sent an email to Dr. Tran with a notice that he was exercising his

rights under the parties’ shareholder agreement to “expel” Dr. Tran from

TMDC. In the notice, he claimed Dr. Tran had violated the agreement and

accused him of multiple breaches of his fiduciary duties including selfdealing, unlawfully withholding Dr. Murray’s pay, overcharging TMDC, and

other forms of financial malfeasance. Dr. Murray asserted that under the

parties’ agreement, they needed to value the business and then TMDC would

buy Dr. Tran’s shares for 75 percent of their value.

At about 7 p.m. that evening, Dr. Murray wrote another email noting

that “Based on our recent contact, you have read the Notice of Expulsion.”

Dr. Murray discussed the parties’ financial disagreements; reiterated his

interest in purchasing the business; and asserted that Dr. Tran (through

Streamline) was responsible for the former employee’s lawsuit.

Dr. Tran’s Alleged Defamatory Statements

About three hours after Dr. Murray’s last email, at 10:25 p.m., Dr. Tran

for the first time expressed his view that Dr. Murray had provided improper

care to a patient. He did this by sending Dr. Murray an email stating: “This

is notice for you to rectify your work regarding your crown work . . . which

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you delivered 6/08/2016 for patient chart [number]. This resulted in a recementation of the crown . . . one year after delivery. You can see the open

margin . . . . Please rectify the situation by contacting the patient and

redoing the work before catastrophic damage occur[s] . . . . If you fail to do so,

we will have to explore alternatives for our patients at Bird[ ]Rock.”

A few minutes later, Dr. Tran sent another email to Dr. Murray,

stating: “This is the second patient this week that we have identified to have

poor quality work completed with open margins . . . . It is quite alarming to

us based upon this trend. Please rectify this situation immediately.” He

included a photograph of a tooth X-ray.

Very early the next morning, at 5:25 a.m. and 5:37 a.m., Dr. Tran sent

emails to Dr. Murray repeating the information from the prior evening

regarding the claimed poor quality work on the two patients, and also sent

the emails to several other individuals. The subject line on the emails was

“Below Standard of Care work—Notice to Rectify.” The names on the cc line

included joint-attorney Woods; several individuals associated with Dr. Tran’s

own dental businesses (Arvin Tounian, Lisa Hoang, Adrien Overholtzer,

Silvia Carpenter); the TMDC regional manager (Kim Newman); and the

“Admin Team” at Streamline. Except for attorney Woods, the domain name

on each of these email addresses was “@sdentals.com,” the same domain

name used by Dr. Tran. Based on information in the record, Arvin Tounian

is a dentist and Hoang, Overholtzer, and Carpenter are employees; all are

associated with Streamline (Dr. Tran’s own separate entity).

Dr. Murray responded by stating he would recall one of the patients,

and the other patient had already been informed but wanted to “wait to

rectify,” and new crowns had been ordered. Dr. Murray also noted that Dr.

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Tran had “deactivated” his access to patient charts so it was “hard to verify

and analyze” Dr. Tran’s concerns.

About one week later, on three separate days (August 23, 25, and 26),

Dr. Tran wrote emails to Dr. Murray, identifying another patient chart and

claiming at length that Dr. Murray was performing substandard dental work

and requesting that Dr. Murray “respond with proper timing so that the team

at Bird Rock can contact the patients immediately.” These emails were

copied to most of the individuals listed above (each with the @sdentals.com as

the domain name), and Dr. Murray’s attorneys.

During this same week, Dr. Tran wrote to Dr. Murray, stating in part:

“If you want to walk down an expensive legal battle, I hope you have deep

enough pockets for it. This is not a win for anyone and especially for you

considering your young career.”

The next month, Dr. Murray filed a federal lawsuit on behalf of TMDC

against Dr. Tran.

At about this same time, on September 22, Dr. Tran sent an email to

Dr. Phil Devore, a Las Vegas dentist, who had agreed to review Dr. Murray’s

patient charts. Although a copy of this email is not contained in the record,

Dr. Murray alleges that in this email, Dr. Tran identified five concerns he

had with Dr. Murray’s work; said Dr. Murray has “refused to acknowledge or

respond to the mounting complaints”; and said Dr. Devore’s report would

“help us . . . regain the standard of care at our practice.” This email also

included Dr. Tran’s earlier email to Dr. Murray, claiming his work “does not

meet the standard of care,” and “that working multiple columns has not

provided you with the ability to perform quality dentistry and this has

harmed your growth as a dentist and the patients you have treated.” Dr.

Murray alleged this September 22 email was copied to attorney Wood; “the

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Admin Team at . . . Streamline”; Amy Tongsiri (a Las Vegas dentist who

formerly provided dental services for Streamline); and several individuals

associated with Streamline (dentist Tounian, and employees Overholtzer and

Hoang).

Five days later, on September 27, Dr. Devore responded to Dr. Tran,

stating that after reviewing nine of Dr. Murray’s patient charts, he found

“[i]n every single case there were numerous examples of treatment that was

rendered beneath the standard of care.” After explaining these conclusions,

Dr. Devore said, “[Dr. Murray’s] diagnostic and clinical skills are

demonstrably substandard” and “recommend[ed]” that Dr. Tran “separate

[him]self from this doctor based on the poor quality of care that he is

delivering . . . .”

That same day, Dr. Tran wrote to Dr. Murray saying: “Ian, I’m

available to talk tonight. Things do not have to go down this ugly route. This

is our last opportunity to discuss things prior to me walking down a path

that’s irreversible. I’m a good person and it’s a tough decision, I know that if

I have to deal with the clinical issues, it’s going to be life changing for you.”

Two days later, on September 29, Dr. Tran emailed Dr. Devore’s letter

(opining on Dr. Murray’s substandard work) to Dr. Phil Burgess and his wife.

Dr. Burgess, a retired dentist, sold the Bird Rock Dental practice to TMDC

almost three years earlier; had worked with Dr. Murray in the practice before

retiring; and had known Dr. Murray since he was a young boy. Dr. Tran’s

cover email to Dr. Burgess stated in part:

“Ever since you left [the Bird Rock practice], I believe the

quality of work from Dr. Murray has dropped significantly.

I’ve enlisted the help of independent auditors to finally

come to my conclusion. [¶ . . . ¶] We have urged Dr.

Murray to address these concerns but he has refused to

acknowledge or respond to the mounting complaints. Your

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advice on the matter would greatly help me with insight on

how to regain the standard of care at our practice. You can

read the email thread of the interactions I faced below

regarding crown deliveries and other clinical matters. . . .

[¶] I had no choice to notify the suspension of work with

Dr. Murray. I’m afraid if things go further, the California

Dental Board will have to get involved.”

Within two months, Dr. Tran hired Dr. Devore to work at one of his Las

Vegas dental practices. Shortly before that time, Dr. Devore left his position

at the University of Nevada, Las Vegas, after being accused of improperly

reusing certain implant-related devices.

Cross-Lawsuits

On November 8, 2017, each party filed a lawsuit against the other.3

Dr. Tran (on behalf of himself and TMDC) sued Dr. Murray and TMDC

seeking dissolution of the business, and alleging breach of contract and

breach of various fiduciary duties. Dr. Murray (on behalf of himself, his

professional corporation, and TMDC) sued Dr. Tran, Streamline, and TMDC,

alleging various employment-related claims, business torts, fraud, theft,

breach of contract, and breach of fiduciary duty.

More than one year later, in February 2019, Dr. Murray filed a second

amended complaint, adding two defamation causes of action (defamation and

defamation per se). Both causes of action alleged the same five categories of

alleged defamatory statements by Dr. Tran.

First, Dr. Murray alleged Dr. Tran made false statements about the

quality of his dental work in the August 19 through August 26 emails. As

noted, some or all of the emails were copied to attorney Wood, several other

individuals, and the Streamline “Admin Team.” Each email address

3 Several days earlier, Dr. Murray had dismissed his federal lawsuit.

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contained the same domain name (@sdentals.com) used by Dr. Tran (except

for attorney Wood’s email).

Second, Dr. Murray alleged Dr. Tran made false statements in the

September 22 email to Dr. Devore in which he claimed Dr. Murray’s work

was substandard and requested that Dr. Devore evaluate Dr. Murray’s work.

Dr. Tran allegedly also sent this email to the individuals/groups identified in

the category above; and to Amy Tongsiri, a Las Vegas dentist who formerly

provided dental services for Streamline.

Third, Dr. Murray alleged Dr. Tran made false statements in the

September 29 email to Dr. Burgess and his wife.

Fourth, Dr. Murray alleged that in December 2017, Dr. Tran spoke

with dentist Dr. Roger Tran (no relation), the owner of a San Diego dental

practice at which Dr. Murray was working after leaving Bird Rock Dental.

As detailed below, Dr. Tran allegedly told Dr. Roger Tran that “Dr. Murray is

doing substandard care in La Jolla” and that he was providing this

information to “protect his patients and [Dr. Roger Tran’s] patients from Dr.

Murray’s (alleged) substandard care.”

Fifth, Dr. Murray alleged that on October 1, 2017, Dr. Tran “held a

meeting with staff personnel at TMDC such that [Dr.] Tran . . . appeared by

video or phone conference with staff personnel at TMDC, including doctors,

the location manager, hygienists, dentists and others, during which [Dr.]

Tran [falsely] stated to these individuals that [Dr.] Murray . . . engaged in

substandard medical care of his patients . . . .”

Dr. Murray alleged that in asserting each of these false representations

about his work, Dr. Tran’s “goal was not to improve the standard of care at

TMDC but instead to blackmail and defame [him].”

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Anti-SLAPP Motion

Several weeks later Dr. Tran moved to strike the defamation claims

(21st and 22nd causes of action).

Dr. Tran argued his statements about Dr. Murray’s work performance

reflect his protected speech on “an issue of public interest” under section

425.16, subdivision (e)(4). He asserted that a dentist who performs deficient

services “poses a serious health risk to members of the San Diego

community” and the topic concerns “a substantial number of people.” He

relied on Wong v. Jing (2010) 189 Cal.App.4th 1354 (Wong), which held that a

statement on Yelp (a social media platform) criticizing a dentist’s work and

discussing her use of mercury in dental treatment was entitled to protection

under section 425.16, subdivision (e)(3), pertaining to statements made in a

“public forum” about an issue of public interest. (Wong, at pp. 1366-1367.)

Dr. Tran also argued that Dr. Murray would be unable to meet his

burden on the second (“merits”) step of the anti-SLAPP analysis because

(1) his statements were privileged under the common interest doctrine;

(2) Dr. Murray would be unable to show he acted with malice; (3) Dr. Murray

would be unable to show the falsity of his statements because there is no

evidence controverting Dr. Devore’s expert opinion that Dr. Murray’s work

was “beneath the standard of care”; and (4) his statements were

nonactionable opinions.

In support of these arguments, Dr. Tran submitted his declaration

stating he and other (unnamed) dentists at Streamline and TMDC “became

concerned” with the quality of Dr. Murray’s work after reviewing patient

files. He said he retained Dr. Devore after Dr. Murray refused to submit “to a

peer review panel and allow that panel to determine if malpractice had

occurred.”

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He attached Dr. Devore’s September 27 letter describing his review of

the nine patient charts and discussing his opinion that Dr. Murray was

performing below the standard of care. Dr. Tran acknowledged he retained

Dr. Devore to work as a dentist at one of his dental practices two months

after he provided this opinion, but indicated this hiring decision was

unrelated to Dr. Devore’s work on this matter.

Dr. Tran also submitted Dr. Devore’s declaration in which he reiterated

his opinions that Dr. Murray’s work reflected in the nine patient files did not

meet the standard of care for dentists.

Opposition to Anti-SLAPP Motion

In opposing the anti-SLAPP motion, Dr. Murray first argued Dr. Tran’s

defamatory statements were not subject to the anti-SLAPP statute. He

contended the statements were not made in connection with a public issue

because they concerned a private matter involving solely the parties, and,

unlike the Wong case, were not made in a public forum. Dr. Murray

emphasized there was no evidence the statements had been communicated to

any patients or potential patients or that any patients had complained or had

any concerns with his dental services.

Second, Dr. Murray argued that even if the anti-SLAPP statute

governed his claims, he had a probability of prevailing because Dr. Tran’s

statements are not protected by the common interest privilege as they were

not made to fellow dentists with an interest in TMDC’s dental practice and,

even if they were, the common interest privilege does not apply because the

statements were made with malice. He further argued the assertions that he

performed substandard work were false and statements of fact, not opinion.

In support, Dr. Murray produced the correspondence between himself

and Dr. Tran reflecting their communications about their business disputes,

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and Dr. Tran’s emails first accusing him of substandard work shortly after

Dr. Murray’s August 18 expulsion email. He also presented evidence of some

(but not all) of the alleged defamatory statements.

Dr. Murray also submitted declarations from a certified periodontist

and five Bird Rock Dental employees, each stating they were unaware of any

patient complaints about him. He additionally proffered declarations and

letters from several oral surgeons and endodontists who have worked with

him and his patients, and who opined that Dr. Murray is an “excellent”

dentist and has always provided competent care to patients, including in

crown delivery.

Dr. Murray also submitted the declaration of Dr. Ian Aires, who said he

has “practiced dentistry for over 35 years as a specialist Prosthodontist,” a

specialty that “places heavy emphasis on restorations (crowns).” He said he

has “intimate knowledge of the standard of care for restorations (crowns)

which is at issue in this lawsuit.” Dr. Aires then stated:

“I am certain that if this case was reviewed by the Peer

Review Society they would find Dr. Murray’s treatment to

be well within the standard of care [for crowns]. . . . [¶] I

have reviewed 24 patient files of patients treated by Dr.

Murray in the period 2014-2018. I have reviewed the 9

patients that Dr. Devore opined on that were treated by Dr.

Murray. I have also reviewed all the documents related to

the case including statements by many dentists with whom

Dr. Murray shared patients.”

Dr. Aires also discussed various criticisms of Dr. Devore’s conclusions, and

said another dentist had examined four of the nine patients whose files were

reviewed by Dr. Devore, and this other dentist “found no reason to re-do any

treatment of Dr. Murray” and that Dr. Murray “appears previously to have

redone two restorations in two of these patients of his own accord.” He noted

there were “no complaints listed from the remaining 3 patients whose

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treatment was criticized by Dr. Devore.” Dr. Aires said that redoing

restorations is “not an uncommon occurrence in dental practice and is not

below the standard of care.”

Dr. Murray also submitted a letter written by Dr. Burgess (the retired

dentist), who stated: “I have known [Dr. Murray] for approximately thirty

years. During that time he has grown from an inquisitive boy into a

conscientious and talented dentist. He has always been concerned with doing

things right and with the details. [¶] Before retiring from my dental

practice, I had the honor of working with Dr. Murray. During that time, I

found his work and his knowledge to be not only above average but

exceptional. Not one of our patients ever complained about the quality of his

work. [¶] I will continue to have trust in Dr. Murray. I will continue to refer

prospective patients to him.”

Dr. Murray also proffered his own declaration stating that none of his

patients have “made any claims of substandard care against me,” and that

“Tran’s accusations against me . . . arose only after I tried to expel [Dr.] Tran

from TMDC because I felt he was stealing money from TMDC after the

[employment] case. . . .” Dr. Murray said Dr. Tran was not responsible for

conducting performance reviews at TMDC, and had never before done so. Dr.

Murray also denied Dr. Tran’s claim that he refused to participate in the San

Diego County Dental Society’s peer review process, explaining this process

applies only when there is a dispute between a patient and his or her dentist.

Dr. Murray also produced a copy of a newspaper article discussing a

claim that Dr. Devore had improperly reused devices used in implant

procedures, contrary to manufacturer recommendations, and that the

“inquiry into the reuse hampered his ability to practice fully at” the

University of Nevada at Las Vegas dental school, and he left for private

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practice at Image Dental in Las Vegas in December 2017 (a practice owned or

operated by Dr. Tran).

He also submitted the deposition testimony of the regional manger for

TMDC, who testified Dr. Tran told her, “he has very deep pockets and if he

had to bankrupt Dr. Murray to win this, that he would.”

Dr. Murray alternatively requested the court continue the motion “to

permit specific discovery,” and submitted his counsel’s declaration explaining

this request. (See § 425.16, subd. (g).)

Reply

In reply, Dr. Tran asserted numerous evidentiary objections to the

declarations of Dr. Aires and Dr. Murray. The objections to Dr. Aires’s

declaration were based mainly on lack of foundation and hearsay (regarding

examinations of Dr. Murray’s patients by other dentists) and relevance

(regarding his opinions about why Dr. Tran made false statements about the

quality of Dr. Murray’s work).

Court’s Ruling

After a hearing, the court granted Dr. Tran’s anti-SLAPP motion and

dismissed the defamation causes of action. The court found the alleged

defamatory statements about the quality of Dr. Murray’s dental care were

subject to the anti-SLAPP statute because they concerned an issue of public

interest, citing section 425.16, subdivision (e)(3) and two Court of Appeal

decisions, Wong, supra, 189 Cal.App.4th 1354 and Hailstone v. Martinez

(2008) 169 Cal.App.4th 728. The court then found Dr. Murray did not meet

his burden to show a probability of prevailing because he “submitted

insufficient evidence to show that the accusations of substandard care made

by Dr. Tran are false.”

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The court did not rule on Dr. Tran’s evidentiary objections, nor did it

expressly rule on Dr. Murray’s request for a continuance to engage in

additional discovery.

DISCUSSION

California’s anti-SLAPP statute “provides a procedure for weeding out,

at an early stage, meritless claims arising from protected activity.” (Baral v.

Schnitt (2016) 1 Cal.5th 376, 384 (Baral); § 425.16.) “Resolution of an antiSLAPP motion involves two steps. First, the defendant must establish that

the challenged claim arises from activity protected by [the statute].

[Citation.] If the defendant makes the required showing, the burden shifts to

the plaintiff to demonstrate the merit of the claim by establishing a

probability of success.” (Baral, at p. 384.)

We apply a de novo review to a court's rulings on whether the parties

met their respective burdens. (Monster Energy Co. v. Schechter (2019) 7

Cal.5th 781, 788.)

I. Prong One: Protected Activity

A. Overview

Under the first step of the anti-SLAPP analysis, the moving party must

show the relief sought is based on allegations arising from protected activity.

(Baral, supra, 1 Cal.5th at p. 396; accord Park, supra, 2 Cal.5th at pp. 1061,

1062-1063.) In considering whether the moving party has met this burden,

we start with the pleadings and also consider the evidentiary submissions.

(See Navellier v. Sletten (2002) 29 Cal.4th 82, 89; Bel Air Internet, LLC v.

Morales (2018) 20 Cal.App.5th 924, 935-937.)

The statute defines four categories of protected activities. (§ 425.16,

subd. (e).) The first two pertain to statements made before or in connection

with a legislative, executive, judicial, or other official proceeding. (§ 425.16,

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subd. (e)(1), (2).) The latter two pertain to statements or other actions

involving a public issue or an issue of public interest: “(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, or (4) 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)(3), (4), italics added.)

In the proceedings below, Dr. Tran maintained, and the court agreed,

that Dr. Murray’s defamation claims fell under section 425.16, subdivision

(e)(4), relying on a case interpreting section 425.16, subdivision (e)(3) in the

context of allegations of substandard dental work, Wong, supra, 189

Cal.App.4th 1354.

In his initial appellate briefing, Dr. Murray argued Wong does not

apply because the statements critical of the dentist in Wong were made on

Yelp (a public forum) to a large audience of potential dental patients,

whereas here the defamatory statements were made to a few parties mainly

associated with Dr. Tran’s private businesses. In his respondent’s brief, Dr.

Tran countered that this distinction is legally irrelevant and that Wong

governs the case because “the relevant standard [applicable to subdivision

(e)(4)] does not consider whether the statements were made to the public at

large—only whether the statements were made ‘in connection with . . . an

issue of public interest. . . .’ ”

However, before the parties had filed their appellate briefs, the

California Supreme Court clarified the scope of the section 425.16,

subdivision (e)(4) standard, and held—contrary to Dr. Tran’s contention—

that a court must consider the context of the alleged wrongful activities in

determining the subsection’s applicability, including the size and nature of

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the audience. (FilmOn.com, supra, 7 Cal.5th 133.) Because neither party

discussed (or even cited) FilmOn.com or a more recent Court of Appeal

decision applying FilmOn.com in a healthcare context (Yang v. Tenet

Healthcare, Inc. (2020) 48 Cal.App.5th 939 (Yang)), we provided the parties

the opportunity to address these decisions in supplemental briefs.

After considering FilmOn.com, Yang, and the parties’ briefing and

supplemental briefing, we conclude one of the five categories of defamatory

statements alleged in the complaint is governed by the anti-SLAPP statute,

and the remainder do not constitute protected activity. In so concluding, we

note that under Baral, we are required to consider each category of Dr. Tran’s

alleged defamatory statements as a separate “claim” subject to a motion to

strike. (See Baral, supra, 1 Cal.5th at pp. 381-382, 384-396.)4

B. Current Case Law Pertaining to Section 425.16, subdivision (e)(4)

In FilmOn.com, the plaintiff (a media entertainment entity) alleged the

defendant (a business providing authentication services to customers

considering advertising on the plaintiff’s website) falsely characterized the

plaintiff’s website as containing copyright infringement and adult content,

and sued for trade libel and slander. (FilmOn.com, supra, 7 Cal.5th at

pp. 141-142.) The defendant moved to strike the claims, arguing adult

4 The Baral court held that in determining the object of an anti-SLAPP

motion, the “targeted claim must amount to a ‘cause of action’ in the sense

that it is alleged to justify a remedy,” and “[n]either the form of the complaint

nor the primary right at stake is determinative” of what constitutes a claim.

(Baral, supra, 1 Cal.5th at p. 395.) Under these principles, courts have held

allegations of defamatory statements arising in discrete circumstances are

each separately subject to a motion to strike under section 425.16. (Medical

Marijuana, Inc. v. ProjectCBD.com (2020) 46 Cal.App.5th 869, 886, fn. 11; see

Baral, at pp. 392-393; Shively v. Bozanich (2003) 31 Cal.4th 1230, 1242 [each

separate defamatory statement can give rise to a new cause of action].)

19

content and copyright infringement are public interest issues under section

425, subdivision (e)(4). (FilmOn.com, at p. 142.)

The high court agreed these are matters of public interest, but

concluded that to show anti-SLAPP’s applicability under section 425.16,

subdivision (e)(4), “ ‘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.’ ” (FilmOn.com, supra, 7 Cal.5th at pp. 150,

154, italics added.) The court said, “ ‘[c]ontribut[ing] to the public debate’ ”

means the defendant “participated in, or furthered, the [public] discourse

that ma[de] [the] issue one of public interest.” (Id. at pp. 150-151.)

The court reasoned that section 425.16’s express purpose is to further

the “continued participation in matters of public significance” (§ 425.16, subd.

(a)), and the other statutory subsections (subdivision (e)(1)-(3)) contain

specific elements or “contextual references” limiting their reach to this

category of speech, i.e., speech made in connection with a public discussion of

an issue. (FilmOn.com, supra, 7 Cal.5th at pp. 143-144, 149-152; see

§ 425.16, subd. (e)(1), (2) [speech must concern a matter at issue in a

governmental or official proceeding]; § 425.16, subd. (e)(3) [statement must be

made in a “public forum”].)

The court then focused on the “any other conduct” phrase in section

426.16, subdivision (e)(4) to conclude that the Legislature must have

intended that this subdivision similarly apply only to statements that

contribute to a public discussion on an issue. (FilmOn.com, supra, 7 Cal.5th

at pp. 144-145.) The court found this requirement particularly important

when applying section 425.16, subdivision (e)(4) because this subdivision can

encompass a private discussion between private individuals. (FilmOn.com,

at pp. 144-146.) Thus, to ensure the statute applies only to constitutionally

20

protected expression, FilmOn.com directed courts to carefully examine

private statements asserted under section 425.16, subdivision (e)(4) to ensure

they are sufficiently connected to an existing public discussion or debate.

(FilmOn.com, at p. 145 [“courts should engage in a relatively careful analysis

of whether a particular statement falls within the ambit of ‘other conduct’

encompassed by subdivision (e)(4)”].)

To assist courts in applying this analysis, the FilmOn.com court

established a two-part inquiry to determine whether a defendant has met its

burden to show its alleged wrongful activities fell within section 425.16,

subdivision (e)(4)’s public interest requirement: “First, we ask what ‘public

issue or [ ] issue of public interest’ the speech in question implicates—a

question we answer by looking to the content of the speech. [Citation.]

Second, we ask what functional relationship exists between the speech and

the public conversation about some matter of public interest.” (FilmOn.com,

supra, 7 Cal.5th at pp. 149-150.)

On the second inquiry, the court stated that a statement falls within

subdivision (e)(4) if it “contributes to—that is, ‘participat[es]’ in or furthers—

some public conversation on the issue.” (FilmOn.com, supra, 7 Cal.5th at

p. 151.) And the court made clear that this analysis must include a

consideration of the context or specific circumstances in which the statement

was made, “including the identity of the speaker, the audience, and the

purpose of the speech.” (Id. at pp. 140, 151-152.)

In applying this test, the FilmOn.com court held the defendant had not

met its burden to show its alleged wrongful conduct sufficiently contributed

to the debate on a public issue to warrant protection under section 425.16,

subdivision (e)(4). (FilmOn.com, supra, 7 Cal.5th at pp. 152-154.) The court

said the defendant issued its reports with the alleged false information “not

21

to the wider public—who may well be interested” in the subject matter—“but

privately, to a coterie of paying clients,” who use the information for

“business purposes alone.” (Id. at p. 153.) Thus because the alleged wrongful

statements about matters of public interest “never entered the public sphere,

and the parties never intended it to,” the defendant’s reports were “too

remotely connected to the public conversation about those issues, to merit

protection under [section 425.16, subdivision (e)(4)’s] catchall provision.” (Id.

at p. 140).

Three months later, the high court decided Wilson v. Cable News

Network, Inc. (2019) 7 Cal.5th 871 (Wilson), in which the court addressed

primarily the issue whether employment claims alleging discrimination and

retaliation can reflect protected activity under section 425.16. (Wilson, at

pp. 881, 885-898.) But the court also considered the issue whether the antiSLAPP statute applied to the employee’s defamation claims, which alleged

that the employer (CNN) falsely told the employee’s supervisor and the

employee’s prospective future employers that the employee had committed

plagiarism. (Id. at p. 899.) The court concluded the anti-SLAPP statute did

not apply to these statements because they were about one particular

instance of plagiarism and not the bigger issue of honesty in the media. (Id.

at p. 903.) But the court also found it important that the statements were

not made as part of a public discussion of the issue. The court stated:

“Relevant, too, is the private context of the alleged statements. Granted,

private communications may qualify as protected activity in some

circumstances. [Citations.] But the private context eliminates any

possibility of protection under section 425.16, subdivision (e)(3) . . . and here

makes heavier [the defendant’s] burden of showing that, notwithstanding the

private context, the alleged statements nevertheless contributed to discussion

22

or resolution of a public issue for purposes of subdivision (e)(4).” (Ibid., italics

added.)

More recently (after the parties completed their initial appellate

briefing), a Court of Appeal applied FilmOn.com in a case involving a surgeon

alleging defamation against other healthcare professionals. (Yang, supra,

48 Cal.App.5th 939.) The surgeon sued medical entities, their staff members,

and individual doctors, for making false statements about her qualifications,

competence, and medical ethics. (Id. at p. 943.) The surgeon alleged these

defendants told “ ‘health care providers,’ ‘medical practices,’ her ‘patients,’

and ‘members of the general public’ ” that the surgeon had “ ‘rendered care

below applicable standards of practice,’ that ‘[h]er behavior and medical

ethics were below applicable standards,’ that she was not ‘qualified or

competent to practice her specialties,’ that she is ‘dangerous to [her] patients

and to employees and members’ of the hospital’s medical staff, and that she

was “ ‘ “under investigation.” ’ ” (Ibid., italics added.)

Applying FilmOn.com’s two-part inquiry, the Court of Appeal held the

defendants met their burden to show the alleged defamatory statements fell

within section 425.16, subdivision (e)(4). (Yang, supra, 48 Cal.App.5th at

pp. 946-949.) On the first inquiry, the court stated the content of the alleged

defamatory statements “implicated . . . the qualifications, competence, and

professional ethics of a licensed physician” and therefore concerned a public

issue. (Id. at p. 947.)

On the second (“functional relationship”) inquiry, the Yang court stated

the surgeon “alleges . . . the defamatory statements were communicated to the

public, not just to discrete doctors or hospital staff members.” (Yang, supra,

48 Cal.App.5th at p. 948, italics added.) The court found “[t]his context . . .

significant, because speech to the public about a doctor's qualifications

23

furthers the public discourse on that matter.” (Ibid., italics added.) The

court also said, “the hospital's directive that doctors should no longer refer

patients to [the plaintiff] is similar to a statement made by a third party to

aid and protect consumers, the latter of which has consistently been held to

constitute protected activity under the anti-SLAPP statute.” (Id. at pp. 948;

see, e.g., Chaker v. Mateo (2012) 209 Cal.App.4th 1138, 1146; Carver v. Bonds

(2005) 135 Cal.App.4th 328, 343-344; Wilbanks v. Wolk (2004) 121

Cal.App.4th 883, 900.) Chaker, Carver, and Wilbanks each involved

statements critical of the defendant that were made on forums widely

available to the public, including a newspaper (Carver), social networking site

(Chaker), and the defendant’s website (Wilbanks).

C. Analysis

Guided by the language of section 425.16, subdivision (e)(4) and the

recent decisions interpreting it (FilmOn.com, Wilson, and Yang), we evaluate

whether the court properly found Dr. Tran met his burden to show the

allegations arose from protected activity. In so doing, we apply FilmOn.com’s

two-part inquiry to each of the five categories of alleged defamatory

statements. (See Baral, supra, 1 Cal.5th at pp. 392-396.)

1. FilmOn.com’s First Inquiry

Dr. Tran satisfied FilmOn.com’s first inquiry on all five categories of

alleged defamatory statements. In each category, the statements concerned

Dr. Murray’s qualifications and competence to perform his dental services.

These are matters about which the public, including current and future

dental patients, have a vital interest. (Yang, supra, 48 Cal.App.5th at p. 947;

see Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th

192, 201 [professional conduct of California licensed physicians are “ ‘matters

of public significance’ ”]; Healthsmart Pacific, Inc. v. Kabateck (2016) 7

24

Cal.App.5th 416, 429 [consumers “have an interest in being informed of

issues concerning particular doctors and health care facilities”].)

2. FilmOn.com’s Second Inquiry

FilmOn.com’s second inquiry requires that we determine whether the

challenged statements “in some manner . . . contribute[d] to the public

debate” or “public conversation” on the issue. (FilmOn.com, supra, 7 Cal.5th

at pp. 150, 154.) We must consider the particular context of the speech,

including the speaker’s identity; the “purpose” of the speech; the nature of the

audience and the intended audience; and the “timing” and “location” of the

communication. (FilmOn.com, at pp. 140, 143-144, 154.) Because these

circumstances were not the same in each category of alleged defamatory

statements, we examine each category separately to determine whether Dr.

Tran met his anti-SLAPP burden. We rely on the entire record in analyzing

whether Dr. Tran met this burden on any one category.

2.a. First Category of Alleged Defamatory Statements

In the first category, Dr. Murray alleged that Dr. Tran sent a series of

emails from August 19, 2017 through August 26, 2017 in which Dr. Tran

falsely stated or implied that Dr. Murray’s “standard of work was below par.”

Dr. Tran sent these emails to the parties’ joint business attorney

(Wood); the “Admin Team” at his own business entity Streamline; and

various individuals. Although the parties do not identify precisely each

individual’s employment or relationship with Dr. Tran, based on information

in the record it appears each of these individuals were associated with Dr.

Tran’s businesses. Specifically, (1) dentists Tongsiri and Tounian worked for,

or previously worked for, Dr. Tran’s dental entities outside the San Diego

area; (2) Newman was TMDC’s administrative regional manager; and (3)

Overholtzer, Carpenter, and Hoang are employees of Streamline or a similar

25

Las Vegas-based entity. Dr. Tran sent the emails to these individuals and

the “Admin Team” using an email address that had the same domain name

as Dr. Tran’s email address (except for the emails to attorney Wood and to

Dr. Tongsiri, whose email address is not identified in the record).

These alleged defamatory emails do not meet FilmOn.com’s functional

relationship test. Although the emails contain statements about an issue of

public interest (the quality of dental care at Bird Rock Dental), there is no

showing the statements furthered or contributed to a public conversation or

discussion on this issue. There was no allegation or evidence that any

member of the public received these emails or that Dr. Tran intended that

any other person read the emails. The emails were sent only to a limited

number of persons within Dr. Tran’s business entities, and Dr. Tran did not

produce any evidence showing any of these individuals had any responsibility

for, or authority over, Dr. Tran’s work at TMDC. There was also no evidence

that Dr. Tran intended or expected that any of the recipients would

communicate to patients or other members of the public that Dr. Murray was

an unqualified or incompetent dentist.

These circumstances are distinguishable from Yang, in which the court

found the defamatory statements “further[ed] the public discourse on” the

issue of the surgeon’s qualifications because they were allegedly

“communicated to the public, not just to discrete doctors or hospital staff.”

(Yang, supra, 48 Cal.App.5th at p. 948, italics added.) Additionally, unlike in

Yang where the statements were made for the stated purpose of warning

potential patients that they should not use the surgeon’s services, Dr. Tran

26

presented no evidence showing he sent these emails to warn patients or other

users of Dr. Murray’s services, or that he intended others to do so.5

On this record, this category of alleged defamatory statements more

closely resembles the defendant’s reports at issue in FilmOn.com—which

were not distributed to the “wider public” and were only sent “privately, to a

coterie of paying clients” (7 Cal.5th at p. 153)—and the defendant’s

statements in Wilson about the employee’s plagiarism—which were made

only within the business organization and to prospective employers (7 Cal.5th

at p. 899). As in FilmOn.com and Wilson, Dr. Tran’s emails were not part of

a public discussion on the identified public issue.

In reaching this conclusion, we recognize that an internal discussion

about the quality of dental care at a particular facility could conceivably

benefit patients and thus serve the public interest. But this fact is not

enough to satisfy FilmOn.com’s functional-relationship test. As the

California Supreme Court noted in Wilson, “ ‘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.’ ” (Wilson, supra,

7 Cal.5th at p. 903.)

In his supplemental brief, Dr. Tran says that Dr. Murray alleged in his

complaint that Dr. Tran “informed the California Dental Board about

Murray’s substandard dental treatment.” (Italics added.) However, this

5 During oral argument, Dr. Tran’s counsel suggested that Yang held a

statement in the nature of consumer protection is sufficient to trigger section

425.16, subdivision (e)(4) coverage, regardless whether the statement was

actually communicated to the public. We do not read Yang this broadly. And

to the extent Yang’s discussion could be construed in this way, we decline to

adopt the interpretation because it is contrary to FilmOn.com’s holding.

27

allegation is not contained in the complaint, nor was there any evidence

produced that Dr. Tran made this statement to the Dental Board or to any

other regulatory agency.6

2.b. Second Category of Alleged Defamatory Statements

In the second category, Dr. Murray alleged that Dr. Tran sent an email

on September 22, 2017 to Dr. Devore (with copies to dentists Tongsiri and

Tounian; the Streamline “Admin Team”; and administrative employees

Newman, Overholtzer and Hoang). We reach the same conclusion on this

category as the first category. Although the content of the email pertains to

the important public issue of the quality of patient care, there is no showing

the email contributed to a public conversation or discussion on the issue. The

email reflected solely an internal discussion between Dr. Tran and his

consultant, with copies to his current employees/contractors within his own

business entities and one Las Vegas dentist who formerly worked for him.

There was no evidence that any patient or anyone who had any responsibility

for Dr. Murray’s dental services at Bird Rock Dental received or otherwise

read these emails, or that patients or prospective patients were the intended

target for these emails.

2.c. Third Category of Alleged Defamatory Statements

The third category of alleged defamatory statements were contained in

the September 2017 email from Dr. Tran to Dr. Burgess. Dr. Burgess was

the dentist who sold the Bird Rock Dental practice to Dr. Tran and Dr.

Murray in about 2015, and with whom Dr. Murray worked for a period of

time.

6 In support of this contention, Dr. Tran cites to Paragraph 335 of Dr.

Murray’s amended complaint. This paragraph concerned only the telephone

conversation between Dr. Tran and Dr. Roger Tran, and does not contain

allegations that Dr. Tran communicated these claims to a regulatory board.

28

In this email, Dr. Tran notified Dr. Burgess of his concern that Dr.

Murray was providing substandard dental care and had “refused to

acknowledge or respond to the mounting complaints.” Dr. Tran asked for Dr.

Burgess’s advice on “how to regain the standard of care at our practice.” Dr.

Tran also said, “I’m afraid if things go further, the California Dental Board

will have to get involved.” Dr. Tran also attached other emails in which Dr.

Tran accused Dr. Murray of working below the standard of care, and included

Dr. Devore’s letter opining about Dr. Murray’s substandard care.

In response to the anti-SLAPP motion, Dr. Murray submitted a letter

from Dr. Burgess, stating that before he retired, he worked with Dr. Murray

in his dental practice, and “found his work and his knowledge to be not only

above average but exceptional . . . . I will continue to have trust in Dr.

Murray. I will continue to refer prospective patients to him.”

Dr. Tran did not include any additional information in his declaration

about the purpose or intent of his communication with Dr. Burgess.

On this record, Dr. Tran did not meet his burden to show his email to

Dr. Burgess was constitutionally protected under section 425.16, subdivision

(e)(4). A statement to a single retired medical professional asking for

assistance in remedying claimed issues in a medical practice has only an

attenuated and indirect relationship to a public discussion or communication

on this issue.

In reaching this conclusion, we find it important that unlike in Yang,

Dr. Tran presented no evidence he made the statements because he wanted

the message to be communicated to patients or future patients, or believed

the message would be conveyed to the public. The California Supreme Court

instructed that in analyzing section 425.16, subdivision (e)(4), courts should

consider whether the statements “were private or widely broadcasted and

29

received, and for what purpose.” (FilmOn.com, supra, 7 Cal.5th at p. 146,

italics added.) The high court illustrated this concept by discussing two

frequently-cited Court of Appeal decisions holding that section 425.16,

subdivision (e)(4) can “apply ‘to private communications concerning issues of

public interest.’ ” (Id. at p. 146; see Terry v. Davis Community Church (2005)

131 Cal.App.4th 1534 (Terry); Hecimovich v. Encinal School Parent Teacher

Organization (2012) 203 Cal.App.4th 450 (Hecimovich).)

The FilmOn.com court said: “[C]ontextual factors mattered in both

Terry and Hecimovich. In Terry, the court considered that the speakers were

church leaders attempting to protect children in the church’s youth groups, as

evidenced by the fact that ‘the matter was referred to the Davis Police

Department for investigation.’ [Citation.] In Hecimovich, too, the court

highlighted the relationship between the speech, the speaker, and the

audience [by] . . . emphasizing that [the] ‘communications . . . concern[ed] the

well-being of young children in an afterschool sports program, as discussed

between and among members of the [parent-teacher organization], parents of

the young team members, and league officials.’ ” (FilmOn.com, supra, 7

Cal.5th at p. 146, italics added.)

In this case, unlike in Terry and Hecimovich, Dr. Tran produced no

information (including in his declaration) that his email to Dr. Burgess was

part of his activities seeking to raise the issue of Dr. Murray’s competence in

the public sphere. Unlike Terry, there was no information that Dr. Tran had

referred the matter to a public agency for investigation. Dr. Tran’s assertions

in his supplemental brief that Dr. Murray had alleged he had communicated

his concerns to the Dental Board are not supported by the record. Further,

his reference to the California Dental Board in this email to Dr. Burgess,

reflected at most a possible future course of action if the matter could not be

30

resolved internally, and not a current public discussion or conversation on the

topic. And unlike in Hecimovich, there was no evidence his statements to Dr.

Burgess about Dr. Murray’s alleged malpractice were being discussed or

intended to be discussed with the interested parties, i.e., the current or

prospective patients.

2.d. Fourth Category of Alleged Defamatory Statements

Dr. Murray alleged that in December 2017, Tran telephoned another

dentist (Dr. Roger Tran), who was the owner of a practice at which Murray

was working after Tran expelled Murray from TMDC. Dr. Tran first texted

Dr. Roger Tran to say he had “ ‘something alarming’ ” to tell him. During

their ensuing phone call, Dr. Tran allegedly told Dr. Roger Tran the

following:

“ ‘[Dr. Tran was] looking through his charts of patients at

his office in La Jolla [and] found bad work happening at his

practice. He [was] implying that he had evidence that Dr.

Murray is doing substandard care in La Jolla. He also

stated that he is sending evidence to the Board to

substantiate his claim. I asked him exactly what

substandard care did he see that Dr. Ian Murray did. [Dr.]

Tran stated that he cannot tell me. He stated the reason

he is telling me because he likes me and that he wants to

protect his patients and my patients from Dr. Murray’s

(alleged) substandard care.’ ”

Neither party submitted any additional information regarding this

communication or the context in which it was made.

We conclude Dr. Tran met his burden to show the alleged statements to

Dr. Murray’s current employer furthered the public discourse that made the

issue one of public interest. Dr. Tran specifically told Dr. Roger Tran that he

wanted to warn him about problems with Dr. Murray’s work because he

wanted to “protect” Dr. Roger Tran’s patients from “substandard care.”

These statements—made to a current employer—were directly tethered to

31

the issue of public interest (a dentist’s competence to perform dental work)

and promoted the public conversation on that issue because they were made

to a person who had direct connection to and authority over the patient

population with whom Dr. Murray was working at the time. (See Mendoza v.

ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1653

[information provided by an employment screening service to a prospective

employer constituted protected activity under the anti-SLAPP statute

because of the strong public interest in “safe workplaces, and in the liability

which may attach to employers who fail to investigate prospective

employees . . . .”]; see also FilmOn.com, supra, 7 Cal.5th at p. 145 [citing

Mendoza with approval in discussing that courts must consider “contextual

cues” in evaluating whether statements contributed to the public discussion

on a particular topic].)

2.e. Fifth Category of Alleged Defamatory Statements

In the fifth category, Dr. Murray alleged that “on or about October 1,

2017, [Dr. Tran] held a meeting with staff personnel at TMDC such that [he]

. . . appeared by video or phone conference with staff personnel of TMDC,

including doctors, the location manager, hygienists, dentists and others,

during which [Dr.] Tran stated to these individuals that [Dr.] Murray

engaged in substandard medical care of his patients or words or conduct to

that effect.” Neither party presented any other information concerning these

alleged statements.

As in the first, second, and third categories, there is insufficient

information in the record that these statements contributed to, or constituted

participation in, a public discussion on the issue of Dr. Murray’s

qualifications and fitness to practice dentistry. As with those categories,

there is no showing that the statements were made to any patient or anyone

32

outside of the TMDC dental practice. Moreover, it is not reasonable to infer

that Dr. Tran intended, or desired, that his claims about Dr. Murray

providing substandard dental care to Bird Rock Dental patients would be

communicated outside the office to the patient community, since Dr. Tran

was a 50 percent owner of the business. Instead, the only reasonable

conclusion is that these statements were made solely for private purposes—

e.g., to enhance the quality of dental care at TMDC or to provide an

explanation for Dr. Tran’s decision to separate from Dr. Murray or to

embarrass and belittle Dr. Murray and thus pressure him to abandon his

claims of financial improprieties against Dr. Tran. The record does not

support that Dr. Tran communicated or intended to communicate the

statements made to the office staff to the broader public, medical/dental

community, or to the patient population.

II. Probability of Prevailing

A. Legal Principles

If the moving party on an anti-SLAPP motion makes the required

showing on any one claim, the burden shifts to the opposing party to

demonstrate the merit of that claim. (Baral, supra, 1 Cal.5th at p. 396.) At

this stage, we consider only the probability of prevailing on the allegations of

protected activity. (Ibid.)

To satisfy the probability of prevailing standard, “[t]he plaintiff need

only state and substantiate a legally sufficient claim. [Citation.] The

plaintiff's evidence is accepted as true; the defendant's evidence is evaluated

to determine if it defeats the plaintiff's showing as a matter of law.” (City of

Montebello v. Vasquez (2016) 1 Cal.5th 409, 420 (Montebello).)

Although the opposing party need only show “minimal merit” to satisfy

the burden, (Montebello, supra, 1 Cal.5th at p. 420), the plaintiff cannot rely

33

on the allegations of the complaint, but must produce evidence that would be

admissible at trial (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118

Cal.App.4th 204, 212; Roberts v. Los Angeles County Bar Assn. (2003) 105

Cal.App.4th 604, 613-614; ComputerXpress, Inc. v. Jackson (2001) 93

Cal.App.4th 993, 1010).

B. Analysis

The sole claim alleging protected activity under the anti-SLAPP statute

was Dr. Murray’s allegation that Dr. Tran committed defamation when he

made false statements in December 2017 to Dr. Murray’s then-current

employer, Dr. Roger Tran. Thus, the burden shifted to Dr. Murray to

establish a probability he can prevail on this defamation claim.

The elements of a defamation claim are (1) publication of fact that is

(2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to

injure or causes special damage. (Taus v. Loftus (2007) 40 Cal.4th 683, 720;

J-M Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th

87, 97.)

Dr. Murray contends he met his burden on each of these elements. We

do not reach these arguments because Dr. Murray did not present evidence of

a foundational fact on the very first element—that Dr. Tran in fact made

these statements. Although Dr. Murray alleged in his complaint the content

of the conversation between Dr. Tran and Dr. Roger Tran, he did not present

any evidence—admissible or inadmissible—that this conversation in fact

occurred. For example, he did not present a declaration or deposition

testimony from Dr. Roger Tran stating the nature of this conversation. Nor

did he state in his declaration the basis of his alleged knowledge of this

conversation, or seek a continuance to obtain this information. On this

34

record, Dr. Murray did not meet his burden to show he will prevail on this

claim.7

III. Motion for Continuance

A court may grant a continuance of an anti-SLAPP motion to allow

discovery for good cause. (§ 425.16, subd. (g).) To establish good cause, the

plaintiff must file a noticed motion identifying the specific discovery sought

and showing this discovery is “ ‘needed . . . to establish a prima facie case’ ”

and “ ‘tailored to that end.’ ” (Abir Cohen Treyzon Salo, LLP v. Lahiji (2019)

40 Cal.App.5th 882, 891.)

Dr. Murray requested a continuance in his written response to the antiSLAPP motion. He submitted his counsel’s supporting declaration. His

counsel said she had been unable to schedule Dr. Tran’s deposition because

he had been unwilling to come to San Diego and was not being reasonable in

providing available dates for a Las Vegas deposition. She also said that Dr.

Murray has a pending motion to compel documents from an accountant.

The court did not expressly rule on this request, but implicitly denied it

when it granted Dr. Tran’s anti-SLAPP motion without permitting a

continuance.

Dr. Murray contends the court abused its discretion. We need not

reach this contention because the court’s ruling was not prejudicial. We have

concluded the court erred in granting Dr. Tran’s anti-SLAPP motion except

on Dr. Murray’s claim involving Dr. Tran’s alleged defamatory statements to

Dr. Roger Tran. We found Dr. Murray did not present any facts showing that

Dr. Tran in fact made these statements. In seeking a continuance, Dr.

7 We note that this conclusion means only that Dr. Murray cannot

recover damages based on Dr. Tran’s alleged statements to Dr. Roger Tran,

but it does not preclude Dr. Murray from submitting evidence about this

alleged conversation to support other claims in the case.

35

Murray did not state or suggest that he needed to take Dr. Tran’s deposition

to obtain facts to support this claim, nor did Dr. Murray ask for additional

time to obtain discovery from Dr. Roger Tran. On this record, any error in

denying the continuance motion was harmless.

In the proceedings below, Dr. Murray made a separate motion for

additional time to conduct discovery beyond the discovery cutoff date based

on the anti-SLAPP discovery stay and other circumstances. Dr. Murray may

reassert this motion in the trial court proceedings after remand.

The anti-SLAPP order is reversed. The court shall vacate the order, and enter a new order (1) granting Dr. Tran’s motion on the defamation claims set forth in Paragraphs 319 and 335 of Dr. Murray’s second amended complaint; (2) striking Paragraphs 319 and 335 from the complaint; and (3) denying Dr. Tran’s motion in all other respects. Appellants are entitled to costs on appeal.