Ps and as in Opposition to Motion to Strike DOC113012 (1)

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ARI LAW, P.C. Ali A. Aalaei, State Bar No. 254713 Bo Zeng, State Bar No. 281626 22 Battery Street, Suite # 1000 San Francisco, CA 94111 Telephone: 415-357-3600 Fax: 415-357-3602

6 Attorneys for Plaintiff, Dr. Randal Pham

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SANTA CLARA

UNLIMITED JURISDICTION

) RANDAL PHAM, an individual, ) CASE NO. 1-12-CV-228332

) Plaintiff,

vs.

JENNY LEE, an individual; ALVIN LEE, an individual; and DOES 1-10 inclusive.

Defendants.

) PLAINTIFF'S OPPOSITION TO ) DEFENDANTS' SPECIAL MOTION TO ) STRIKE PURSUANT TO CALIFORNIA ) CODE OF CIVIL PROCEDURE §425.16 ) AND OPPOSITION TO MOTION FOR ) JUDGMENT ON THE PLEADINGS. ) ) Date: December 13, 2012 ) Time: 9:00 a.m. ) Dept.: 8 ) Judge: Hon. Peter Kirwan

Case No. 1-12-CV-228332 Pl.'s Opp. to Defs' Special Mot. to Strike and Mot. For Judgment on the Pleadings

TABLE OF CONTENTS

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3 I. INTRODUCTION ................................................................................................................... 2

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5 II. ARGUMENT .......................................................................................................................... 4

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7 A. Defendants Have Not Met Their Burden to Show That The Anti-SLAPP

8 Statute Applies To The Complaint In This Case ................................................................ .4

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10 B. Even If the Anti-SLAPP Statute Applies, Plaintiff Has Presented Sufficient

11 Evidence That It Is Likely To Prevail On The Merits Oflts Claim .................................... 6

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13 1. The Challenged Statements Are Adequately Identified ................................................... 7

14 2. That Defendants Published The Statements On The Internet Is Undisputed ................... 7

15 3. The Internet Statements Are Actionable Defamation Constituting Libel.. ...................... 8

16 i. Exhibit A To The Complaint Contains Libelous Assertions of Fact. ........................... 8

17 ii. Defendant's Publication Shown In Exhibit B is Entirely Libelous Per Se .................. lO

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19 iii. Defendant's Publication Shown In Exhibit C Is Comprised of Libel Per Se ............. 1 0

20 iv. The Court Should Deny the Motion for Judgment on The Pleadings ........................ 12

21 C. The Defamatory Statements Were Made With Actual Malice ........................................... 12

22 D. California Civil Code Section 48(a) Does Not Apply To The Instant Case ....................... 13

23 E. The Court Should Deny the Motion as a Late Filed Paper .................................................. 14

24 III. CONCLUSION ..................................................................................................................... 14

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Case No. 1-12-CV-228332 Pl.'s Opp. to Def.s' Special Mot. to Strike and Mot. For Judgment on the Pleadings

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TABLE OF AU THORITIES

CASE LAW

Albertini v. Schaefer, (1979) 97 Cal. App. 3d 822, 82 900000000000000000000000000000000000000000000000000000000000000010

Ampex Com. v. Cargle, (2005) 128 Cal. App. 4th 15 69, 1577 OOOOOOOoooooooooooooooooooooooooooooooooooooooooooooS

Anschutz Entertainment Group, Inc. v. Snepp (2009)

DuCharme v. Int. Brotherhood of Electrical Workers

Field Research Corp. v. Sup. Ct. of San Francisco (19

171 Cal.App.4th 598, 639 000000000000000000000006

(2003) 110 Cal. App. 4th 107, 11900000000.5

69) 71 Cal. 2d 1100000000000000000000000000000000000014

Gallagher v. Connell (2004) 123 Cal.App.4th 1260, 1 270.00000000000000000000000000000000000000000000000000000000008

Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323,352

Hofmarm Co. v. E.I. DuPont de Nemors & Co. (1988

Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.

Leonard v. McPherson (1905) 146 Cal. 616, 62000000000

00000000000000000000000000000000000000000000000000000000000000005

) 202 Cal. App. 3d 390, 398 0000000000000000000 8

App. 4th 1264, 1271 000000000000000000000000000000.4

000000000000000000000000000000000000000000000000000000000000000007

Lin v. City of Pleasanton (2009) 176 Cal. App. 4th 40 8, 425 0000000000000000000000000000000000000000o00ooooooooooo6

Lortz v. Connell (1969) 273 Cal. App. 2d 286,2910000 oooooooooooooooooooooooooooooooooooooooo00ooooooooooooooooooooooo12

Morris v. National Federation of the Blind (1961) 19 2 Cal. App. 2d 162, 166000000000000000000000000000014

Noonan v. Rousselot (1966) 239 Cal. App. 2d 447,4 53 0000000000000000000000oooooooooooooooooooooooooooooooooooooooo12

Overbill Farms, Inc. v. Lopez (2010) 190 Cal. App. 4 th 1248, 1260ooooooooooooooooooooooooooooooooooooooooooo8

Paiva v. Nichols, (2008) 168 Cal. App. 4th 1007, 101 7 ooooooooooooooooooooooooooooooooooooooooooooooooooo0000oooooooo7

J>Laty]Jll~1¥~!lr,Jn_c.y,GQ1Qb~t'! (2008) 166 Cal. App. 4th 772, 787oooooooooooooo00ooooooooooooooooooooooooooool4

Price v. Operating Engineers Local Union No. 3 (201 1) 195 Cal. App. 4th 962, 972 0000000000000000.4

Reader's Digest Assn v. Sup. Ct. (1984) 37 Cal. 3d 2 44, 256.ooooooooooooooooooooooooooooooooooooooooooooooooooooo13

iii

Case No. l-12-CV-228332 Pl.'s Opp. to Def.s' Special Mot. to Strike a1 1d Mot. For Judgment on the Pleadings

Slaughter v. Friedman (1982) 32 Cal.3d 149, 153 ........................................................................ 8

2 Vegod Corp. v. Am. Broad. Cos. (1979) 25 Cal. 3d 763, 769 ...................................................... 6

3 Weinberg v. Feisel (2003) 110 C a!. App. 4th 1122, 1127 ............................................................ 10

4 Wilbanks, (20 II) 121 Cal. App. 4th 883, 899 ............................................................................. .4

5 Wilcox v. Sup. Ct. (1994) 27 Cal . App. 4th 809, 822 ................................................................... 6

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Williams v. Seiglitz, (1921) 186 Cal. 767, 772 ............................................................................ 10 7

8 Wilson v. Stockholders Pub. Co (1935) 4 Cal. 2d 724, 729-730 .................................................. 7

9

10 STATUTES

II Cal. Civ. Code § 45 ..................... .................................................................................................. 8

12 California Civil Code § 48a ........ .................................................................................................. 13

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14 Cal. Code ofCiv. Proc. § 425.16 .................................................................................................. 4

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16 OTHER AUTHORITIES

17 Cal. R. Ct. 3.1113(d) ................... .................................................................................................. 14

18 Cal. R. Ct. 3.1113(g) ................... .................................................................................................. 14

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Case No. 1·12·CV-228332 Pl.'s Opp. to Def.s' Special Mot. to Strike and Mot. For Judgment on the Pleadings

Plaintiff Randal Pham ("Plaintiff') hereby submits this opposition ("Opposition") to

2 Defendants' Special Motion to Strike Pursuant to California Code of Civil Procedure section 425.16

3 and Motion for Judgment on the Pleadings (collectively the "Motion"). Filed herewith are Plaintiffs

4 Objections to Defendants' Evidence, the Declaration ofPlaintiff("Pl.'s Dec!."), the Declaration of

5 Debra Phairas ("Phairas Dec!."), the Declaration of David W. Parke II, M.D. ("Parke Dec!."), and the

6 Declaration of Bo Zeng ("Zeng Decl."), and exhibits attached thereto.

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I. INTRODUCTION 8

9 This lawsuit arises from Defendants' serial defamation of Plaintiff. Plaintiff is a practicing

10 ophthalmologist in Santa Clara, California. PI's Dec!., '\[1. Defendants Jenny Lee and Alvin Lee

11 (hereinafter "Defendants"), who are the children of Plaintiffs patient Young Lee, posted statements on

12 the Internet regarding Plaintiff and Plaintiffs business practices. Zeng Dec!., '\[3, Ex. I.

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14 On July 12, 2012, Plaintiff filed suit against Defendants for defamation based on the Internet

15 statements. Plaintiffs Complaint for defamation attaches Exhibits A, B, and C, which are copies ofthe

16 defamatory Internet postings. Plaintiff alleges that the following statements constitute defamation:

17 • "He's a crook. Stay away." Compl., Ex. B.

18 • "Fraud." Compl., Ex.B.

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20 • "[t]here is definitely something wrong with your scheduling system." Compl., Ex.A.

21 • "They overbook every single day to maximize how much money they make in a day." Compl.,

22 Ex. A.

23 • "They completely breached patient trust by scarnming me out of$200." Compl., Ex.C.

24 • "Do not trust him." Compl., Ex. C.

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26 • "He does this systematically to other patients as well." Compl., Ex. C.

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Case No. lwl2wCVw228332 Pl.'s Opp. to Def.s' Special Mot. to Strike and Mot. For Judgment on the Pleadings

• "I was in the lobby and overheard the exact same problem being reported by another patient."

2 Compl., Ex. C.

3 Defendants' Internet statements are provably false assertions of fact. Paragraph 10 ofthe

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Complaint alleges that Defendants were acting in concert with one another when making the

defamatory statements. Paragraph 4 of the Complaint alleges that Defendants Jenny and Alvin Lee are

not direct recipients of any goods sold or services rendered by Plaintiff. Although Defendants' Motion

argues that Plaintiff has not "pled the truth," the Complaint alleges that the challenged Internet

statements are false.

Rather than retract the libelous Internet statements and mitigate the damage to Plaintiff in his

occupation, on September 10,2012, Defendants filed an Anti-SLAPP Motion claiming that the Internet

statements involve constitutionally protected activity, and seeking to prove "the truth" of the matter

asserted in the Internet posts. The Motion argues that:

"Plaintiff continues to run his business in a troublesome manner, and continues to cater primarily to the Vietnamese community- a community especially susceptible to Plaintiffs fraudulent sales practices due to the language difficulties inherent with first-generation immigrant communities. Plaintiff preys on his vulnerable patients, abusing their trust and ripping them off by 'prescribing' eyeglasses, and then selling them $16 Walmart glasses at a 1,500 percent markup."

Plaintiff maintains that the Motion compounds the defamation, and is specious because certain

contentions do not have evidentiary support or support under existing law. In truth, the alleged charge

for $199 was for eyeglasses and services rendered, not merely a pair of eyeglasses. Pl.'s Dec!., ~7.

Any reasonable pre-filing investigation would have revealed this fact, and Defendants were alerted to

this fact prior to the filing of this Opposition but refused to withdraw the Motion. The allegation that

Plaintiff committed "fraud" by "scamming" Defendant out of $200 is completely false.

Plaintiff maintains further that the existing law does not warrant the filing of the Motion. The

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Motion does not show that there is any ongoing discussion relating to Plaintiffs billing procedures or

appointment scheduling, nor does the Motion offer any credible evidence that Plaintiff thrust himself

into a vortex of public discussion regarding billing procedures or appointment scheduling.

Plaintiff notes for the record that the instant Motion presents a unique prejudice to the Plaintiff-

namely, that Plaintiff as a physician is bound by privacy restraints and concerns and therefore cannot

present a full Opposition. Nevertheless, Plaintiff believes that the Opposition hereby submitted is

sufficient to result in the denial of the Motion. Should the Court require additional evidence before

denying Defendants' Anti-SLAPP Motion, Plaintiff respectfully requests a continuance in order to take

discovery regarding the patients' positions with respect to the privacy concerns.

A.

II. ARGUMENT

Defendants Have Not Met Their Burden to Show That The Anti-SLAPP Statute Applies To The Complaint In This Case.

Under the anti-SLAPP statute, the moving party has the initial burden of establishing a prima

facie case, showing that the plaintiffs cause of action arises from the defendant's protected activity.

See Cal. Code ofCiv. Proc. § 425.16. "If the defendant does not demonstrate this initial prong, the

court should deny the anti-SLAPP motion and need not address the second step." Hylton v. Frank E.

Rogozienski, Inc. (2009) 177 Cal. App. 4th 1264, 1271. Here, Defendants' challenged Internet

statements (Exhibits A, B, and C to the Complaint) were not made in connection with any official

proceeding. Instead, the Motion argues that: (I) Defendants' Internet statements constitute "consumer

protection information" that California's appellate courts have held to constitute a matter of public

interest protected by the anti-SLAPP statute, and (2) that Plaintiff is a limited-purpose public figure.

3 Case No. 1-12-CV-228332

Pl.'s Opp. to Def.s' Special Mot. to Strike and Mot. For Judgment on the Pleadings

Def.'s Mot. p.8, L27-p.9, L1, Section V.

2 It is true that courts have held that "consumer information, at least when it affects a large

3 number of person, also generally is viewed as information concerning a matter of public interest."

4 Wilbanks, (2011) 121 Cal. App. 4th 883, 899. However, in the instant case, Defendants have not

5 submitted credible evidence showing that a large number of persons have been affected by Plaintiffs'

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business practices. Rather, Defendants' Motion involves a private matter between a doctor and patient. 7

8 Private controversies applicable to the speaker and a specific audience simply do not constitute a

9 "public issue." See Price v. Operating Engineers Local Union No.3 (2011) 195 Cal. App. 4th 962,

10 972.

11 In cases where the issue does not affect the public at large, but rather a limited, but definable

12 portion of the public (a private group, organization, or community), in order to invoke the protection of

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14 the Anti-SLAPP statute the constitutionally protected activity must occur in the context of an ongoing

15 controversy, dispute or discussion .. See DuCharme v. Int. Brotherhood of Electrical Workers (2003)

16 11 0 Cal. App. 4th 1 07, 119. Here, Defendants have not offered sufficient evidence for the Court to

17 conclude that Defendants' statements are in furtherance of any ongoing public discussion regarding

18 Plaintiff's business practices. Plaintiff objects to Defendants' evidence to the extent that it is offered to

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20 show such an ongoing discussion. Pl.'s Objections to Evidence, Nos. 1-8, 13, 16, 17, 23. The only

21 evidence relating to Plaintiff's business practices offered by Defendants consists of Defendants' own

22 Internet statements and experiences, which is insufficient in itself to invoke Anti-SLAPP protection.

23 See Price, 195 Cal. App. 4th at 972. Therefore, the Motion does not satisfY Defendants' burden on the

24 issue of whether the alleged protected activity is in furtherance of an ongoing public discussion.

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26 Nor is Plaintiff a limited purpose public figure with respect to the statements alleged to

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constitute defamation. A definition of a limited public figure is one who has "voluntarily inject[ ed]

2 [themselves] or is drawn into a particular public controversy and thereby becomes a public figure for a

3 limited range of issues." Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 352. For a plaintiff to be

4 characterized as a limited purpose public figure, "First, there must be a public controversy, which

5 means the issue was debated publicly and had foreseeable and substantial ramifications for

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7 nonparticipants. Second, the plaintiff must have undertaken some voluntary action through which he or

8 she sought to influence resolution of the public issue ... [a]nd finally, the alleged defamation must be

9 germane to the plaintiff's participation in the controversy." Ampex Corp. v. Cargle (2005) 128 Cal.

10 App. 4th 1569, 1577.

11 With regard to the first, second, and third requirements to show that Plaintiff is a limited public

12 purpose figure, Plaintiff objects to all of Defendants' submitted evidence to the extent that Defendants

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14 offer to show that Plaintiff thrust himself into a vortex of an ongoing public issue or controversy. See

15 Pl.'sObjectionstoDefs.' Evidence,Nos.1-8, 10, 13, 14, 16, 17,20,23. Defendants' argument that

16 Plaintiff thrust himself into a public controversy merely relies on the argument that because Plaintiff

17 "has ... self-publicized his [business] ventures," he is a limited purpose public figure. Mot., p.20-L 10.

18 However, a person in the business world advertising his wares does not automatically become part of

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20 an existing public controversy. Vegod Corp. v. Am. Broad. Cos. (1979) 25 Cal. 3d 763,769.

21 Defendants have not and cannot show that the Internet statements were made in connection with a

22 particular public issue, or an issue of public concern within the meaning of the anti -SLAPP statute. If

23 the Court were to accept Defendants' reasoning, then any professional advertising his or her services

24 would become a limited-purpose public figure, and the Court should decline to go so far, so as to

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Because Defendants have not met their burden under the initial prong of the anti-SLAPP statute

analysis, the Court should deny the Motion, and need not address the second step. See Hylton, 177 Cal.

App. 4th at 1271.

B. Even If The Anti-_SLAPP Statute Applies, Plaintiff Has Presented Sufficient Evidence That It Is Likely To Prevail On The Merits Oflts Claim.

The second step of the anti-SLAPP analysis requiring a plaintiff to show a probability of

prevailing means that plaintiff "must demonstrate [that] the complaint is legally sufficient and

supported by a sufficient prima facie showing of facts to sustain a favorable judgment." Wilcox v. Su12.,

Ct. (1994) 27 Cal. App. 4th 809, 822. The plaintiff need only establish that his or her claim has

minimal merit or a minimal level of legal sufficiency and triability, in order to avoid being stricken as a

SLAPP. Lin v. City of Pleasanton (2009) 176 Cal. App. 4th 408, 425; Anschutz Entertainment Group,

Inc. v. Snepp (2009) 171 Cal.App.4th 598, 639. This standard is similar to that employed in

determining nonsuit, directed verdict or summary judgment motions. Paiva v. Nichols (2008) 168 Cal.

App. 4th 1007, 1017.

1. The Challenged Statements Are Adequately Identified.

Defendants' Motion argues that, "Plaintiffs Complaint fails to specifY which statements are

defamatory and why he believes they are defamatory." Mot., p.12, L9-10. Paragraph 14 of the

Complaint alleges, however, that Defendants' "publications shown in Exhibits A, B, and C to this

Complaint, were made with malice and intent to injure plaintiffs business and business reputation."

Exhibits A, B, and C to the Complaint each show one publication relating to Plaintiff, and the names in

the publications are identical and/or similar to the names of the parties shown in the caption of the

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Complaint. As such, the Complaint adequately identifies the statements alleged by Plaintiff to

2 constitute defamation by Defendants. See Wilson v. Stockholders Pub. Co (1935) 4 Cal. 2d 724, 729-

3 730; Leonard v. McPherson (1905) 146 Cal. 616, 620.

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5 2. That Defendants Published The Statements On The Internet Is Undisputed.

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7 Plaintiff hereby attaches evidence that the published defamatory statements were available on

8 the Internet on July 27,2012. Zeng Dec!., '1[3, Ex.l. The statements attached to the Declaration ofBo

9 Zeng appear to be identical to the statements regarding Plaintiff shown in Exhibits A, B, and C to the

10 Complaint. The Motion does not argue or deny that Defendants did not publish the statements shown

II in Exhibits A, B, and C to the Complaint. Therefore, Plaintiff has submitted sufficient evidence ofthe

12 publication of the statements by Defendants that are challenged by the Complaint, and the parties do

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14 not dispute that Defendants published the statements-at-issue.

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16 3. The Internet Statements Are Actionable Defamation Constituting Libel

17 Libel is defined as a "false and unprivileged publication by ... fixed representation to the eye,

18 which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned

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20 or avoided, or which has an tendency to injure him in his occupation." Cal. Civ. Code § 45. In the case

21 of Slaughter v. Friedman (1982) 32 Cal.3d 149, 153, defendant made a statement that a dentist was

22 performing unnecessary work and overcharging for the work. The Slaughter Court concluded that the

23 statements that accused plaintiff of charging excessive fees or performing unnecessary work reasonably

24 may be deemed defamatory under section 45. I d. at 154.

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i. Exhibit A To The Complaint Contains Libelous Assertions of Fact.

2 Exhibit A to the Complaint, which contains Defendant Alvin L.' s statements that Plaintiff

3 "overbook[s] every single day to maximize how much money they make in a day," and that "there is

4 definitely something wrong with [Plaintiffs] scheduling system," is provably false and tends toinjure

5 Plaintiff in his occupation.

6 In determining whether a statement is one of fact or opinion, the Court will place itself in the

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8 shoes of an average reader, and evaluate the "natural and probable effect of the statement." Hofmann

9 Co. v. E.I. DuPont de Nemors & Co. (1988) 202 Cal. App. 3d 390, 398. Essentially, "the dispositive

10 question is whether a reasonable fact finder could conclude the published statement declares or implies

11 a provably false assertion of fact." Overbill Farms, Inc. v. Lopez (2010) 190 Cal. App. 4th 1248, 1260.

12 If a challenged statement could reasonably be construed as either fact or opinion, then a jury should

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14 resolve the issue. See Gallagher v. Connell (2004) 123 Cal. App. 4th 1260, 1270.

15 The defamatory statements contained within Exhibit A are provably false assertions of fact, or

16 could be understood by a reasonable person to constitute assertions of fact, and are not mere opinions

17 because the statements can be proven false. Plaintiffs declaration sets forth personal knowledge that,

18 in fact, Plaintiff does not over book patients every single day, and Plaintiff did not overbook patients for

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20 March 27,2012. See Pl.'s Dec!., ~3. Additionally, Debra Phairas, a physician practice management

21 expert, personally inspected Plaintiffs medical practice including but not limited to Plaintiffs patient

22 schedules and business records, and concluded "that Dr. Pham has not overbooked his patients every

23 single day." See Phairas Dec!., ~11.

24 Ms. Phairas declares "unequivocally that Dr. Pham has not overbooked patients in a way that

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26 deviates from the norm of the industry and that his medical practice follows the accepted norms within

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the industry." Id. To the extent that Defendants attempt to prove the truth of their assertions regarding

2 Plaintiffs patient scheduling system, Plaintiff objects to Defendants' evidence on the grounds oflack

3 of personal knowledge, speculation, and/or hearsay as set forth in Plaintiffs Objections to Evidence.

4 See Pl.'s Objections to Defs.' Evidence, Nos. 9, 10, 15-17, 19. 22, 23. The qualified assertions that

5 Plaintiff "overbooks every single day" and that there is "definitely something wrong," are assert a

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7 quantitative basis to the assertion that is capable of being proven false.

8 Furthermore, a reasonable person could understand the statements to imply that Plaintiff is not

9 available to render his professional services, as a result of the alleged overbooking every single day

10 such that third persons may not contact Plaintiff in order to retain his services due to non-availability.

11 The statement is libelous per se because no extrinsic evidence is necessary to show that the statement

12 regarding Plaintiffs non-availability would tend to cause one to shun or not contact Plaintiff regarding

J3·

14 his services. To the extent that the Court is not satisfied with the showing of damages caused by

15 Defendant's statement, the Court should permit discovery into the number of persons that viewed the

16 web page and contacted Plaintiff before the Internet posting, as compared with after the posting.

17 Defendant's statement that "there is definitely something wrong with [Plaintiffs] system," in

18 juxtaposition with the false allegation of overbooking, and publication of a "one star" review of

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20 Plaintiffs services, disparages Plaintiff in his occupation and could cause a reasonable person to shun

21 Plaintiff due to concern about the alleged defects with Plaintiffs scheduling system and services.

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23 ii. Defendant's Publication Shown In Exhibit B is Entirely Libelous Per Se.

24 Defendant Jenny Lee's statement regarding Plaintiff, that "He's a crook. Stay away,"

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26 constitutes libel per se. See Albertini v. Schaefer (1979) 97 Cal. App. 3d 822, 829; Williams v. Seiglitz

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(1921) 186 Cal. 767, 772; see also Weinberg v. Feisel (2003) 110 Cal. App. 4th 1122, 1127 (causes of

action arising out of false allegations of criminal conduct ... not subject to anti-SLAPP statute). The

statements tend to injure Plaintiff in his occupation without the necessity of explanatory matter, and are

actionable without a showing of special damages. See Albertini, 97 Cal. App. 3d at 829; Slaughter v.

Friedman, 32 Cal. 3d 149, 153. Notwithstanding, the statement is provably false because Plaintiff has

never been arrested, convicted, or involved in criminal activity. Pl.'s Dec!., '1!12. Defendant's

additional statement to "stay away," literally directs third persons to shun Plaintiff, thereby injuring

Plaintiff in his occupation. See Cal. Civ. Code §45. A reasonable person could find that the

publication shown in Exhibit B to the Complaint constitutes defamation.

iii. Defendant's Publication Shown Is Comprised of Libel Per Se.

As shown in Exhibit C to the Complaint, Defendant Jenny Lee published Internet statements at

www.insiderpages.com entitled "Fraud," which provides:

They [Dr. Pham's clinic] breached patient trust by scamming me out of$200. The doctor said he was going to order special glasses to help with my vision. He ended up ordering a pair of standard reading glasses you can purchase from the drug store. Do not trust him. He does this systematically to other patients as well. Compl., Exhibit C.

Language that imputes to one "fraud" or want of integrity in his profession is actionable per se,

Williams v. Seiglitz, (1921) 186 Cal. 767,772, and is within the statutory construction of libel, Cal.

Civ. Code§ 45. Defendant's allegations of"fraud," and statements that Plaintiff"breached patient

trust," and warnings to "not trust him," subject Plaintiff to ridicule and contempt, and tend to injure

Plaintiff in his occupation because a reasonable person could understand the statements to mean that

Plaintiff should not be trusted or retained for services.

Furthermore, the assertions are provably false, and frivolous. Defendant Jenny Lee is not, and

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never has been, a patient of Plaintiff, rendering the entirety of the publication shown in Exhibit C false

and made with actual malice towards Plaintiff.

Defendants' Motion argues that:

"[T]he statements are substantially true. Turning to the Exhibits to the Complaint, the assertion that Plaintiff charged $200 for a pair of drugstore eyeglasses is true, based on the receipts and sworn declarations submitted with [the] motion to strike." Mot. p.18, L24-26.

Defendant's statement that Plaintiff charged $200 for a pair of drugstore eyeglasses is false, and

the Motion does not establish its truth. Exhibit 2 of the Declaration of Young Lee shows a charge for

$199.00 on March 27,2012, however, this evidence does not show the item charged for.

Paragraph 3 of Young Lee's declaration, which states that Plaintiff, "charged me $199 for the

glasses that evening," is disputed and is false because the $199 charge was for eyeglasses and services.

Pl.'s Dec!., '\[7, and Plaintiff never told Young Lee that Plaintiff would charge $200 or $199 for

eyeglasses only. Pl.'s Dec!., '\[6. The entirety of Young Lee's declaration is unreliable due to

Defendant's statements regarding his language proficiency. See Pl.'s Objections to Evidence No. 20.

Paragraph 12 of Young Lee's declaration, which states that the credit card statements reflect a

charge of$199 "for the over-the-counter eyeglasses" is speculation, conclusory, and lacks foundation.

To the extent that Defendants, who are not patients of Plaintiff, attempt to offer evidence probative of

the basis for the $199 charge, Plaintiff objects to such evidence. See Pl.'s Objections to Evidence, '\[11-

14, 18-20,21,23-25. Although Plaintiff is prejudiced to the extent that Plaintiff cannot offer evidence

of certain conversations between Plaintiff and Young Lee due to privacy concerns, Plaintiff contends

that Young Lee is aware of the false nature of his declaration regarding the charges and billing.

Plaintiff can charge for his services. David W. Parke II, M.D., a practicing ophthalmologist and

expert, Parke Dec!., '\['\[1-6, testifies under penalty of perjury that refraction involves "determining the

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Case No. IMI2kCV-228332 Pl.'s Opp. to Def.s' Special Mot. to Strike and Mot. For Judgment on the Pleadings

refractive condition of the eye, by measuring its ability to refract light that enters it so as to form an

2 image on the retina." Parke Dec!., '1[7. Dr. Parke declares that all ophthalmologists learn how to "study

3 refraction to learn how to correct vision through lenses," during their respective residency programs.

4 Id. Dr. Parke declares further that ophthalmologists are "trained to perform refraction and to prescribe

5 and dispense glasses or contact lenses," and that "these services are within their scope of practice." I d.

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7 Plaintiff is a licensed ophthalmologist. Pl.'s Dec!., 'If!.

8 iii. The Court Should Deny the Motion for Judgment on The Pleadings

9 The Court should deny Defendants' Motion for Judgment on the Pleadings because the

10 Complaint states a claim for defamation against Defendants. A motion for judgment on the pleadings

II should not be granted unless there is an entire absence of an essential allegation. Lortz v.

12 Connell (1969) 273 Cal. App. 2d 286,291. (emphasis added). Plaintiff should not be deprived of a

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14 jury trial regarding the issue of damages suffered by Plaintiff as a result of Defendants' defamation.

15 C. The Defamatory Statements Were Made With Actual Malice.

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17 As discussed supra, Plaintiff is not a limited purpose public figure, and therefore Plaintiff is not

18 required to plead and prove actual malice. Noonan v. Rousselot (1966) 239 Cal. App. 2d 447,453.

19 However, even if the Coutt were to require Plaintiffto show actual malice at this early stage without an

20 opportunity for discovery, Plaintiff can show that Defendant's statements were made with actual

21 malice.

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23 A statement is deemed to be made with actual malice when the speaker spoke "with knowledge

24 that it [the statement] was false or with reckless disregard of whether it was false or not." Reader's

25 Digest Assn v. Sup. Ct. (1984) 37 Cal. 3d 244, 256. In determining whether a statement was made with

26 actual malice, attention is directed towards the defendant's attitude regarding the truth or falsity of the

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material published." Id. at 257. In defamation cases, actual malice may be shown by circumstantial

2 evidence such as a "failure to investigate, anger and hostility toward plaintiff, reliance upon sources

3 known to be umeliable or known to be biased against plaintiff, may ... indicate that publisher ... had

4 serious doubts regarding truth of the publication." Id. at 257.

5 In the present case, indications of Defendant Jenny Lee's actual malice are present. First,

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7 Defendants' statements shown in Exhibit C to the Complaint falsely provide that Defendant was a

8 patient of Plaintiff-Defendant Jenny Lee therefore made the statement with knowledge of its falsity

9 because she has never been a patient of Plaintiff. In addition, Ms. Lee's publications on the Internet

10 website Yelp regarding Plaintiff were removed by the Internet site at least four ( 4) times for violating

II Yelp's Content Guidelines or Terms of Service. Zeng Dec!., Ex.3. This series of posting, having the

12 post removed, and then reposting, demonstrates Defendant's reckless disregard for the truth of the

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14 matter concerning the publications and evidences the serial attack against Plaintiff. When an

15 individual's post is removed, he or she is aware of it either through notification and/or the absence of

16 the post from the website. Upon being put on notice that Defendant's posting had violated Yelp's

17 guidelines or tetms of service, she repeatedly reposted the statements, displaying hostility and anger

18 towards Plaintiff.

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20 D. California Civil Code Section 48(a) Does Not Apply To The Instant Case

21 California Civil Code § 48a applies only to publications in newspapers. Morris v. Nat.

22 Federation ofthe Blind (1961) 192 Cal. App. 2d 162, 166. The language of the statute indicates that it

23 does "not apply to third parties who are not participants in the publishing or broadcasting enterprise."

24 Field Research Corp. v. Sup. Ct. of San Francisco (1969) 71 Cal. 2d 110, 114. Because the Motion does

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26 not involve a newspaper, or show that Defendants are involved in the publishing or broadcasting

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Case No. 1-12-CV-228332 Pl.'s Opp. to Def.s' Special Mot. to Strike and Mot. _For Judgment on the Pleadings

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industry, Defendants' argument that section 48a applies is without merit or support under existing law.

E. The Court Should Deny the Motion as a Late Filed Paper.

According to the California Rules of Court, "no opening or responding memorandum may

exceed 15 pages, and if a memorandum does, it "must be filed and considered in the same manner as a

late-filed paper." Cal. R. Ct. 3.1113( d), (g). Defendants' motion exceeds the fifteen (15) page limit, in

that the Motion is twenty-three (23) pages, and accordingly is to be deemed "a late-filed paper." Cal. R.

Ct. 3.1113(g). A trial court has "considerable discretion" regarding whether to allow the late filing of

an anti-SLAPP motion. Platypus Wear, Inc. v. Goldbert (2008) 166 Cal. App. 4th 772,787. Here,

Plaintiff has been prejudiced by having to respond to Defendants' non-meritorious arguments that

exceed the page limitation set forth under the California Rules of Court. Plaintiff has also suffered

prejudice as a result of having to incur substantial expense to oppose the Motion, which makes

arguments that do not find support under existing law and are not grounded in fact. In this instance, the

Court can and should deny Defendants' motion as a late-filed paper.

III. CONCLUSION

Defendants' anti-SLAPP Motion fails because the instant dispute is a private matter.

Additionally, the Motion fails because Defendants' Internet statements are provably false, and

Defendants' contentions lack evidentiary support and support under existing law. Therefore, Plaintiff

respectfully requests that the Court deny the Motion in its entirety.

Respectfully submitted

Dated: By: Ali Aalaei Attorney for Plaintiff, Randal Pham

14 Case No. 1-12-CV-228332

Pl.'s Opp. to Def.s' Special Mot. to Strike and Mot. For Judgment on the Pleadings

Documents

Ps and as in Opposition to Motion to Strike DOC113012 (1)