Court of Appeal, Third District, California.
No. C050766 Jan. 26, 2007
Georgette GILBERT, Plaintiff, Cross-defendant and Appellant,
v. Jonathan SYKES, Defendant, Cross-complainant and Respondent.
APPEAL from a judgment of the Superior Court of Sacramento County, Thomas M. Cecil, Judge. Reversed with directions.
COUNSEL
DLA Piper RudnickGray Cary US, Kathryn E. Karcher, Megan Whyman Olesek, Jerold L. Hersh and Gregory J. Lundell;
Sheppard Mullin Richter & Hampton, Guylyn R. Cummins and James M. Chadwick; Nolen, Saul & Brelsford and Rudy
Nolen; Nolen & Associates and Rudy Nolen for Plaintiff, Cross-defendant and Appellant.
Wilke, Fleury, Hoffelt, Gould & Birney, Philip R. Birney, Danielle M. Guard and Daniel L. Baxter for Defendant, Cross-
complainant and Respondent.
OPINION
BUTZ, J.
In our youth and celebrity worshipping culture, the benefits and risks of plastic surgery are a hot topic.
The number of people, especially women, who have had minimally invasive cosmetic surgery has grown
exponentially in the past several years.
Jonathan Sykes, M.D., is a prominent professor and practitioner of plastic and reconstructive surgery at
the University of California, Davis Medical Center (UCD Medical Center) in Sacramento. Sykes
performed a series of facial cosmetic procedures on Georgette Gilbert in February 2003.
Gilbert was appalled at the results. She not only sued Sykes for medical malpractice, but
created a Web site relating her experiences with Dr. Sykes (including before and after
photos), as well as information and advice for those considering plastic surgery.
Sykes filed a multi-tort cross-complaint in the malpractice action, alleging he was defamed and
suffered loss of business as a result of false and misleading statements appearing on Gilbert's
Web site. Gilbert responded with a special motion to strike the cross-complaint. (Code Civ.
Proc., § 425.16.) [FN1] The trial court denied the motion, finding that Sykes had established a
probability of prevailing on his cross-complaint.
FN1. Undesignated statutory references are to the Code of Civil Procedure.
Exercising our power of independent review, we shall reverse. While we
agree with the trial court's finding that the cross-complaint qualified for
SLAPP [FN2] treatment under the statute, we conclude, contrary to the trial
court's finding, that Sykes was a limited purpose public figure and
therefore had the burden of making a prima facie showing that the
statements in the Web site were both false and published with actual
malice. Because we find that Sykes failed to carry that burden, we shall
vacate the order with directions to grant Gilbert's motion.
FN2. "SLAPP stands for 'Strategic Lawsuit Against Public Participation.'"(Lam v. Ngo (2001) 91 Cal.App.4th 832, 835, fn. 1.)
For clarity, we refer to a "SLAPP" or "anti-SLAPP" motion as a "special motion to strike"-the language used in the statute (§
425.16, subd. (b)(1)).
FACTUAL BACKGROUND
The Surgery
Dr. Sykes is the Director of Facial Plastic and Reconstructive Surgery at UCD Medical Center in Sacramento. Sykes was
profiled in a 2003 article in Sacramento magazine entitled Top Doctors, which lauds him as "a nationally recognized
educator and leader in minimally invasive esthetic and laser surgery [,][who] has performed over 10,000 surgical
procedures, is board-certified in otolaryngology and facial plastic surgery, and has published three books and over 90
articles on facial plastic surgery."
Gilbert became interested in plastic surgery after another doctor recommended that she might benefit from a brow lift. She
approached Sykes because she was acquainted with him and thought of him as a friend. After consulting with Sykes,
Gilbert agreed to undergo five separate plastic surgical procedures to her face. Sykes told her that the goal was to make
her look natural after the surgery and that "we didn't want to make too much change." The surgery was performed in
February 2003.
During an April 2003 post-surgical visit, Sykes told Gilbert the results were "very good and improving."
Gilbert did not agree. She was extremely unhappy with the results, asserting that she could not fully
close her eyes, her eyebrows were higher than she expected, one eyebrow was higher than
the other and she had a permanently "surprised" look on her face. Beginning in late June 2003
Gilbert underwent four revision surgeries, performed by other doctors, to correct her
problems.
In May 2004, Gilbert brought a malpractice suit against Dr. Sykes and the Regents of the University of
California (the Regents) in connection with the surgery performed by Sykes.
Gilbert's Web site
In late February or early March 2005, Gilbert established a Web site (with the address <http:
//www.mysurgerynightmare.com> [currently accessible as of 1/26/07] ) (hereafter Web site). The Web
site contains five hyperlinks (or link(s) that take the reader to an additional page of information), which we
discuss below:
At the Home Page of the Web site, Gilbert explains: "I started this Web site so I can share my
experience with plastic surgery. My hopes are to inform and educate because when I originally
looked into cosmetic surgery on the Internet there was very little information from a patients
[sic ] perspective, but a lot of information coming from the doctor's perspective. [¶] I will share
my experience with plastic surgery and show my original (untouched) before and after photos. If you still
wish to pursue plastic surgery after reading my story, I hope you learn from the information I provide so
you can make the best educated decision possible before going under the knife. I will give you
information and links on how to check what your doctor is certified in, any past lawsuits, information on
what to ask during your consult, and give you my take on what red flags to look out for." The Home Page
also lists several malpractice lawsuits that have been filed or are pending against Dr. Sykes.
The Before and After Photos link takes the viewer to two pairs of photographs taken before and after the
surgery performed by Sykes-one full view of Gilbert's face and another of just her eyes. Both after
pictures are captioned "Approximately [five] months after surgery." The after photographs show Gilbert
with a surprised, eyes-wide-open look. Above the eye photographs, Gilbert inserted the following caption:
"I was told by my doctor that this was a good result-that I looked better after his surgery-what do you
think?"
At the Selecting a Doctor link, a page of "useful information" features tips on selecting a plastic surgeon,
advice which Gilbert states is "MY own opinion after consulting with revision doctors all over the United
States, having multiple revisional surgeries, and just researching as much as possible."
At the Red Flags link, Gilbert discusses "Things to look out for" with disclaimers describing certain traits
under the heading, "Doctors I would be cautious of."
The Final Thoughts/Contact Me link recounts Gilbert's experience with Sykes. She said that Sykes told
her she would look natural after the surgery and she was under the impression the change would be
subtle. Instead, she wrote, the "surgery was the biggest regret of my life. I didn't need [five] procedures
and I had no idea what I was getting myself into. What I thought was going to be subtle turned into a
nightmare. I've spent over two years of my life meeting with doctors all over the United States and having
revision surgeries in hopes to get back to how I once looked or at the very least look normal again."
Litigation
When Gilbert did not submit to Sykes's request to close down her Web site, Sykes and the Regents filed
a cross-complaint for damages and injunctive relief [FN4] based on publications appearing in the Web
site that were allegedly defamatory and caused Sykes emotional distress and loss of business. The
crucial charging accusations of the cross-complaint appear in paragraph 7, which states:
"In late February or early March 2005, ... [Gilbert] established a Web site at www.mysurgerynightmare.
com (Web site). In this Web site, [Gilbert] (after identifying Dr. Sykes as the 'director of facial plastic and
reconstructive surgery at [UCD] Medical Center') presents, inter alia, misleading 'before and after' facial
photographs in connection with the procedures performed by Dr. Sykes (photos that were taken after
additional and significant cosmetic surgery procedures not performed by Dr. Sykes), falsely indicates that
Dr. Sykes recommended and performed procedures that [Gilbert] did not need/want, misstates the
content of communications between [Gilbert] and Dr. Sykes relating to the procedures performed by Dr.
Sykes, and falsely suggests that Dr. Sykes was compensated for the procedures 'under the table.'"
FN4. Sykes abandoned his attempt to force Gilbert to shut down her Web site after the trial court denied
his ex parte application for a temporary restraining order.
Sykes also alleged that Gilbert obtained from Google ™ or possibly other search engines a "sponsored
link," such that a search for "Jonathan Sykes" would bring up a link to Gilbert's Web site.
Gilbert responded by filing a special motion to strike the cross-complaint (see fn. 2, ante ). Her moving
papers claimed that the Web site's publications were protected by the First Amendment, and that neither
Sykes nor the Regents could establish an actionable claim for defamation or any other tort.
Evidence was submitted by both sides and the trial court held a hearing on the matter. The court
ultimately issued an order granting the special motion as to the Regents but denying it as to Sykes. While
finding that section 425.16 applied to the cross-complaint, the court also ruled that Sykes was not a
limited purpose public figure, which would have required a showing that Gilbert's statements were uttered
with actual malice. Stated the court: "The fact he has published articles and books on plastic surgery and
appeared on television shows does not mean there is a public controversy relating to Ms. Gilbert's plastic
surgery." Finding that Sykes had made the requisite prima facie showing that Gilbert defamed him with
respect to the before and after photos as well as statements appearing in the Web site, the court denied
the special motion to strike.
The Regents have not appealed from the order dismissing them as cross-complainants. Gilbert appeals
from the order denying her special motion to strike as to Sykes.
DISCUSSION
I. General Principles
"Code of Civil Procedure section 425.16 was enacted in 1992 to dismiss at an early stage nonmeritorious
litigation meant to chill the valid exercise of the constitutional rights of freedom of speech and petition in
connection with a public issue. [Citation.] These meritless suits, referred to under the acronym SLAPP, ...
are subject to a special motion to strike unless the person asserting that cause of action establishes by
pleading and affidavit a probability that he or she will prevail." (Sipple v. Foundation for Nat. Progress
(1999) 71 Cal.App.4th 226, 235 (Sipple ), fn. omitted, citing Lafayette Morehouse, Inc. v. Chronicle
Publishing Co. (1995) 37 Cal.App.4th 855, 858 and § 425.16, subd. (b)(1).) "Claims based on these acts
are subject to a special motion to strike unless the court determines that the plaintiff has established that
there is a probability of prevailing on the merits." (Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569,
1575-1576 (Ampex ).)
"'If the defendant establishes a prima facie case, then the burden shifts to the plaintiff to establish "'a
probability that the plaintiff will prevail on the claim,'" i.e., "make a prima facie showing of facts which
would, if proved at trial, support a judgment in plaintiff's favor." '" (Dowling v. Zimmerman (2001) 85 Cal.
App.4th 1400, 1417 (Dowling ).)
The trial court's ruling on a section 425.16 motion is reviewed de novo. (Terry v. Davis Community
Church (2005) 131 Cal.App.4th 1534, 1544 (Terry ).) We exercise our independent judgment to
determine not only whether the anti-SLAPP statute applies, but whether the complainant has established
a reasonable probability of prevailing on the merits. (Ibid.)
II. Whether Section 425.16 Applies
Before reaching the merits of the order, we must address Sykes's initial contention that, contrary to the
trial court's ruling, section 425.16 did not even apply to the cross-complaint.[FN5]
FN5. Although he did not file a cross-appeal, Sykes has standing to make this argument for the purpose
of demonstrating that the trial court errors of which Gilbert complains caused her no prejudice.
(Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2005) ¶ 8:196, p. 8-
124; see Code Civ. Proc., § 906.)
A lawsuit qualifies as a special motion to strike under section 425.16 if it arises from an act "'in
furtherance of the person's right of petition or free speech under the United States or California
Constitution.' ?7D (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 892 (Wilbanks ), quoting § 425.16,
subd. (b)(1).) The statute defines acts in furtherance of free speech or petition as including statements
that are made (1) in a public forum and (2) in connection with an issue of public interest. (Wilbanks, at p.
892, citing § 425.16, subd. (e).)
While not contesting that the Internet is a public forum, Sykes maintains that the Web site does not
concern a matter of public interest. He points out that "it is not enough that the statement refer to a
subject of widespread public interest; the statement must in some manner itself contribute to the public
debate." (Wilbanks, supra, 121 Cal.App.4th at p. 898.) Sykes asserts that statements on the Web site do
not contribute to the public debate because they only concern Gilbert's interactions with him. He is wrong.
The public interest requirement of section 425.16, subdivision (e)(3) must be "'construed broadly' so as
to encourage participation by all segments of our society in vigorous public debate related to issues of
public interest." (Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 808 (Seelig ).) The
Legislature inserted the "broad construction" provision out of concern that judicial decisions were
construing that element of the statute too narrowly. (Briggs v. Eden Council for Hope & Opportunity
(1999) 19 Cal.4th 1106, 1120 (Briggs ), citing Stats.1997, ch. 271, § 1.)
Sykes does not dispute that plastic surgery is a subject of widespread public interest and discussion.
Indeed, a Google ™ search (at <http:// www.google.com/> [as of 1/26/07] ) using the words "pros" "cons"
"cosmetic" and "surgery" returns a virtual deluge of articles and Web sites devoted to the well-known
controversy surrounding plastic surgery. Elective cosmetic surgery was the subject of the popular
television series Extreme Makeover, in which it is portrayed as a positive, life-transforming event. Yet the
widespread and indiscriminate use of plastic surgery by celebrities and the public has also generated a
firestorm of negative publicity and comment. (See, e.g., Awful Plastic Surgery-the good, bad, and ugly of
celebrity plastic surgery <http:// www.awfulplasticsurgery.com> [as of 1/26/07]; Kuczynski, Beauty Junkies-
Inside Our $15 Billion Obsession With Cosmetic Surgery (2006).)
Sykes is a widely known plastic surgeon, practicing at a prestigious medical institution, who has written
numerous articles on plastic surgery, appeared in local television shows on the subject and advertised in
the Sacramento media market.
Gilbert's Web site contributed toward the public debate about plastic surgery in at least two ways: First,
assertions that a prominent and well-respected plastic surgeon produced "nightmare" results that
necessitated extensive revision surgery contributes toward public discussion about the benefits and risks
of plastic surgery in general, and particularly among persons contemplating plastic surgery as a means of
looking younger or improving their appearance. (See Terry, supra, 131 Cal.App.4th at p. 1547
[allegations that a church leader engaged in an inappropriate relationship with a teenage minor in his
congregation constituted a matter of public interest because it implicated "society's interest in protecting
minors from predators, particularly in places such as church programs that are supposed to be safe"];
Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146, 1161 (Annette F.) [charges of domestic abuse by
a lesbian partner in a couple that had achieved national prominence through adoption litigation was an
issue of public interest because it "potentially affected a large number of children and adoptive parents
beyond the direct participants"]; Sipple, supra, 71 Cal.App.4th at p. 238 [wife-beating allegations against
prominent political consultant raised issue of public interest, where he "was able to capitalize on domestic
violence issues in order to further his career"].)
Second, a review of the entire Web site shows that it is not limited to Gilbert's interactions with Sykes. The
Web site contains advice, information and a contact page where readers can share their own
experiences. At the Selecting a Doctor link, a page on "Useful Information" has tips on choosing a plastic
surgeon, including references to other Web sites and resources. A Red Flags link lists "Things to look out
for" or warning signs to look for when selecting a doctor to perform the surgery. A Final Thoughts/Contact
Me link features Gilbert's ruminations about plastic surgery in general, not all of it negative. Clearly, the
Web site was not limited to attacking Sykes, but contributed to the general debate over the pros and cons
of undergoing cosmetic surgery.
For the foregoing reasons, we agree with the trial court's finding that Gilbert's Web site concerned a
matter of public interest within the meaning of section 425.16.
III. Limited Purpose Public Figure
The most important question we face is whether Sykes was a limited purpose public figure for purposes of
his defamation claims. "Copp v. Paxton (1996) 45 Cal.App.4th 829, 845-846 [ (Copp) ] sets forth the
elements that must be present in order to characterize a plaintiff as a limited purpose public figure. First,
there must be a public controversy, which means the issue was debated publicly and had foreseeable
and substantial ramifications for nonparticipants. Second, the plaintiff must have undertaken some
voluntary act through which he or she sought to influence resolution of the public issue. In this regard it is
sufficient that the plaintiff attempts to thrust him or herself into the public eye. And finally, the alleged
defamation must be germane to the plaintiff's participation in the controversy." (Ampex, supra, 128 Cal.
App.4th at p. 1577.)
Contrary to the trial court's ruling, Sykes stands out as an archetypical example of a "limited purpose" or
"vortex" public figure. (Annette F., supra, 119 Cal.App.4th at p. 1163.) As we have explained, the relative
merits of plastic surgery is a subject that has garnered national attention and is the focus of widespread
public interest. Gilbert produced evidence showing that Sykes has thrust himself into that debate by
appearing on local television shows as well as writing numerous articles in medical journals and beauty
magazines, touting the virtues of cosmetic and reconstructive surgery. Sykes has also testified as an
expert witness on the subject and advertised his services in the local media.
These facts provide compelling proof that Sykes "undertook 'some voluntary act through which he seeks
to influence the resolution of the public issues involved,'" and took "'affirmative actions'" to thrust himself
into the "'forefront of [a] particular public controvers[y].'" (Copp, supra, 45 Cal.App.4th at p. 845, quoting
Reader's Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 254-255.) It is not even necessary to
show that Sykes actually achieved prominence in the public debate. It is sufficient that he "'attempt[ed] to
thrust himself into the public eye' [citation] or to influence a public decision." (Copp, supra, at pp. 845-
846.)
Sykes attempts to avoid this conclusion by playing fast and loose with the definitions. Sykes argues he
was not a limited purpose public figure because there was no preexisting public "'controversy' regarding
the procedures performed by Dr. Sykes on Ms. Gilbert." (Italics added.) This claim is at war with the
concept of a limited purpose public figure.
A person becomes a limited public figure by injecting himself into the public debate about a topic that
concerns a substantial number of people. Once he places himself in the spotlight on a topic of public
interest, his private words and conduct relating to that topic become fair game. Sykes would turn this
formulation on its head. He would require that the plaintiff generate a broad public controversy through
private words or conduct before he could be deemed a public figure, an atrophic definition that would
virtually eliminate all vortex public figure candidates.
If a complainant's private conduct had to generate a public controversy before he could be deemed a
public figure, those who exposed his controversial behavior in the first place would face defamation
liability for inaccurate statements made in good faith, while those who joined in the discussion afterward
would be immune from such claims unless it was shown that their statements were uttered with malice.
That is not the law. Indeed, defamation decisions finding the complainants to be vortex public figures
have typically involved persons who claimed they were defamed for private conduct after they injected
themselves into matters of general public discussion or controversy. (See, e.g., Terry, supra, 131 Cal.
App.4th at pp. 1547-1548; Sipple, supra, 71 Cal.App.4th at p. 238; Copp, supra, 45 Cal.App.4th at pp.
846-847.)
Here, Sykes's sought-after prominence as an expert in and advocate for plastic surgery as a means of
personal enhancement transformed him into a limited purpose public figure. As such, statements alleging
that his surgical procedures resulted in disfigurement or required expensive multiple corrective surgeries
are entitled to constitutional protection.
We conclude that Sykes was a vortex public figure who invited public attention and comments regarding
his surgical practice. Thus, to prevail on a defamation claim, he was required to prove by clear and
convincing evidence not only that Gilbert's claims were false, but that they were uttered with actual
malice. (Annette F., supra, 119 Cal.App.4th at p. 1166.)
Having resolved these preliminary but important issues, we turn to the specific allegations of the cross-
complaint and whether Sykes met his burden of producing prima facie evidence to support his defamation
claims.
IV. Probability of Success
Since Gilbert established that she was sued after exercising her First Amendment right to free speech in
a public forum in connection with an issue of public interest, the burden shifted to Sykes to establish that
there is a probability he will prevail on his claims. (§ 425.16, subd. (b)(1); Evans v. Unkow (1995) 38 Cal.
App.4th 1490, 1496.) To meet this burden, Sykes must "'demonstrate the [cross-]complaint is legally
sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the
evidence submitted by the plaintiff is credited.' [Citation.] 'The burden on the plaintiff is similar to the
standard used in determining motions for nonsuit, directed verdict, or summary judgment.'" (Seelig,
supra, 97 Cal.App.4th at p. 809.) The showing must be made through "competent and admissible
evidence." (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.
4th 1219, 1236 (Tuchscher ); see also Evans, supra, 38 Cal.App.4th at pp. 1497-1498.) Thus,
declarations that lack foundation or personal knowledge, or that are argumentative, speculative,
impermissible opinion, hearsay, or conclusory are to be disregarded. (See Tuchscher, supra, at pp.
1238, 1240.)
"In deciding the question of potential merit, the trial court considers the pleadings and evidentiary
submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not
weigh the credibility or comparative probative strength of competing evidence, it should grant the motion
if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to
establish evidentiary support for the claim." (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811,
821 (Wilson ).)
"Defamation is an invasion of the interest in reputation. The tort involves the intentional publication of a
statement of fact which is false, unprivileged, and has a natural tendency to injure or which causes
special damage." (Ringler Associates Inc. v. Maryland Casualty Co. (2000) 80 Cal.App.4th 1165, 1179
(Ringler.) "There can be no recovery for defamation without a falsehood. [Citation.] Thus, to state a
defamation claim that survives a First Amendment challenge, plaintiff must present evidence of a
statement of fact that is provably false. (Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 20 [111 L.Ed.
2d 1, 18].) 'Statements do not imply a provably false factual assertion and thus cannot form the basis of a
defamation action if they cannot "'reasonably [be] interpreted as stating actual facts' about an individual."
[Citations.] Thus, "rhetorical hyperbole,""vigorous epithet[s],""lusty and imaginative expression[s] of ...
contempt," and language used "in a loose, figurative sense" have all been accorded constitutional
protection. [Citations.]' ... The dispositive question after the Milkovich case is whether a reasonable trier
of fact could conclude that the published statements imply a provably false factual assertion." (Seelig,
supra, 97 Cal.App.4th at p. 809, italics added).)
Sykes alleges that Gilbert's Web site defamed him in four different ways: (1) presenting misleading before
and after facial photographs in that the after photos were taken after "additional and significant cosmetic
surgery" performed by others; (2) falsely indicating that Sykes recommended and performed procedures
that Gilbert did not need or want; (3) misstating "the content of communications" relating to the
procedures he performed; and (4) falsely suggesting that Sykes was compensated for procedures "under
the table."
For the reasons that follow, we conclude that Sykes has failed to carry his burden of demonstrating the
probable merit of a defamation claim based on any of these allegations.
A. Before and After Photographs
Gilbert posted two sets of before and after photographs on her Web site with captions "Approximately one
month before surgery" and "Approximately two weeks before surgery," each paired with a photo
captioned "Approximately [five] months after surgery." (Italics added.) Sykes's cross-complaint alleged
that the photographs were misleading in that the after photo was taken after Gilbert had additional
revision surgical procedures performed by other plastic surgeons. Gilbert, however, debunked this
accusation in an uncontradicted declaration, wherein she stated that the after photograph was taken after
Sykes's procedures and before any revision surgery was done on her face. Gilbert added that her facial
muscles were at rest and her face in repose when the photographs were taken, thereby laying to rest any
speculation that she tried to distort her natural appearance in order to cast the results of the surgery in a
bad light.
"'In all cases of alleged defamation, ... the truth of the offensive statements or communication is a
complete defense against civil liability, regardless of bad faith or malicious purpose.'" (Ringler, supra, 80
Cal.App.4th at p. 1180.) Because Gilbert submitted uncontradicted evidence the photographs were
indeed what they purported to be, truth as a defense was established.
Sykes responds by focusing on minute details that do not detract from the essential accuracy of the
photographs. He seizes on Gilbert's admission in her deposition that her first revision surgery was
performed on June 24, 2003 (about four and one-half months after her February 5 surgery), and notes
that at one time, Gilbert's Web site claimed the after photo was taken five and one-half months after the
surgery.
The slight discrepancy in time frame does not provide Sykes with an escape hatch from the truth defense.
"'It is well settled that a defendant is not required in an action of libel to justify every word of the alleged
defamatory matter; it is sufficient if the substance, the gist, the sting of the libelous charge be justified,
and if the gist of the charge be established by the evidence the defendant has made his case.' [Citation.]
'"[A] slight inaccuracy in the details will not prevent a judgment for the defendant, if the inaccuracy does
not change the complexion of the affair so as to affect the reader of the article differently...."'" (Sipple,
supra, 71 Cal.App.4th at p. 244, quoting Kurata v. Los Angeles News Pub. Co. (1935) 4 Cal.App.2d 224,
227.) Whether the photograph was taken five or even five and one-half months after the surgery rather
than four and one-half is of little significance. The crucial point is that the photograph was taken after
Sykes's surgery but before other doctors performed their revision surgeries. Because it was, the "gist"
and "sting" of the allegedly libelous charge was shown to be true, and Sykes cannot base a defamation
claim upon it. (Hughes v. Hughes (2004) 122 Cal.App.4th 931, 936.)
Sykes also points to the declaration of Julie Hamilton, which he submitted in opposition to the special
motion to strike. In it, Hamilton declared she took screen snapshots of the photos on Gilbert's Web site
with her Apple computer, aligned the two images, and then created a split-screen view. Based on these
statements, Sykes argues that Gilbert's photos were taken from different angles and on a different scale.
Again, Sykes seeks to turn the court's attention away from the forest by focusing on the trees, or perhaps
more accurately, a branch of one tree. Hamilton's declaration establishes, at most, that Gilbert did not
compose her photographs with scientific precision. But the average reader cares little about geometrical
accuracy-what is important is that the photographs were substantially accurate depictions of what
Gilbert's face looked like before and after Sykes's surgery. Because Hamilton's declaration did not negate
this fact, it did not help prove a prima facie case of defamation.
Since the before and after photographs were substantially accurate representations of what took place
with respect to Sykes's surgery, they were not defamatory as a matter of law.
B. Procedures that Gilbert Did Not Need/Want
Sykes next alleges that the Web site falsely indicated that Sykes recommended and performed
procedures that Gilbert did not "need" or "want." Sykes finds support for this charge from two sources:
First, a passage that appeared on an earlier version of the Web site (since removed), which stated: "I met
with [Dr. Sykes], the director of facial plastic and reconstructive surgery at [UCD] Medical Center. I knew
him for a few years from my ex-boyfriend and had a lot of trust in him based on knowing and seeing him
over the years and his impressive sounding title. I really wasn't sure what to expect when I met with him.
He quickly suggested I would benefit from having five procedures to my face. I was told that if I did the
suggested procedures, I would maintain my looks longer and age better into my late thirties and forties.
He said I could be back to work in two weeks and that it would be subtle. Wow, he made it sound simple
and easy-sign me up!"
Second, Sykes points to Gilbert's "final thoughts" at her Final Thoughts/Contact Me link: "For me surgery
was the biggest regret of my life. I didn't need [five ] procedures and I had no idea what I was really
getting myself into. What I thought was going to be subtle turned into a nightmare." (Italics added.)
Weaving these two passages together, Sykes claims they are libelous because (1) he did not "quickly"
suggest having the procedures, but only did so after Gilbert informed him of her concerns; (2) he never
told her she "needed" five procedures or any procedure for that matter; and (3) he did not state the
changes would be subtle; in fact Gilbert told him to be "aggressive." His arguments are unpersuasive for
several reasons:
First, Sykes does not deny that he suggested a variety of procedures and indeed, his deposition
testimony admits as much. The timing of the suggestion during his conference with Gilbert is of no
consequence because it has no impact on Sykes's reputation in the community. (Civ.Code, § 46.) No
plastic surgeon can claim he lost business because his suggestions were too "quick."
Second, nowhere in the Web site does Gilbert state or imply that Sykes told her she "needed" the
surgeries. Indeed, her use of the word "suggested" connotes just the opposite. Gilbert's wistful closing
remark that she did not "need" the procedures, read in the proper context, simply indicates her regret at
her eagerness to go ahead with the surgery without becoming fully informed, and her sorrow at the
unfortunate consequences that ensued. No injurious falsehood can be extracted from Gilbert's statement
that she did not "need" five procedures.
Third, Gilbert's statement that she thought the changes would be "subtle" is not very different from
Sykes's own deposition testimony on the subject-"I told her that my goal was to make it so that at the end
of her healing process, which could take several months, that she look natural after surgery and that we
didn't want to make too much change." (Italics added.) These statements could be reasonably interpreted
by a prospective patient as an assurance that the changes effected by the surgical procedures would be
subtle.
The "gist" and "sting" of Gilbert's assertion that Sykes assured her the changes would be "subtle" was
substantially true, regardless of whether Sykes ever used the word. [FN6] Thus, the imputation was
protected by the truth defense. (Ringler, supra, 80 Cal.App.4th at p. 1181, citing Campanelli v. Regents
of University of California (1996) 44 Cal.App.4th 572, 581-582.)
FN6. Gilbert testified at her deposition that Sykes did indeed use the word "subtle" to describe the
intended result of his procedures.
Fourth and finally, Gilbert's alleged failure to disclose her direction to Sykes to "be aggressive" with the
surgery does not leave her open to a charge of defamation. While she may have told him to be
aggressive, she certainly did not intend for him to make her look aggressive, which was the asserted
unhappy result of the surgery.
C. Misstating "the Content of Communications" Between Gilbert and Sykes
The third major charge of the cross-complaint is that Gilbert's Web site "misstates the content of
communications between [Gilbert] and Dr. Sykes relating to the procedures performed by Dr. Sykes."
This allegation is far too vague and amorphous to support a cause of action for defamation.
In order to successfully resist a special motion to strike, a plaintiff must "'"state[ ] and substantiate[ ] a
legally sufficient claim."' [Citations.] Put another way, the plaintiff 'must demonstrate that the complaint is
both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable
judgment if the evidence submitted by the plaintiff is credited.'" (Wilson, supra, 28 Cal.4th at p. 821, italics
added.) If the pleadings are not adequate to support a cause of action, the plaintiff has failed to carry his
burden in resisting the motion. (See Vogel v. Felice (2005) 127 Cal.App.4th 1006, 1018-1019 (Vogel );
[FN7] Drum v. Bleau, Fox & Associates (2003) 107 Cal.App.4th 1009, 1018-1019["[S]pecial motions to
strike pursuant to section 425.16 operate "like a demurrer or motion for summary judgment in 'reverse.'"'
(Briggs, supra, 19 Cal.4th at p. 1123, citing College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704,
718-719 [plaintiff opposing Code Civ. Proc., § 425.13, subd. (a) motion, must demonstrate existence of
legally sufficient claim that is supported by competent, admissible evidence]"], Drum was disapproved on
another ground in Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055, 1065; see also Simmons v. Allstate
Ins. Co. (2001) 92 Cal.App.4th 1068, 1073-1074 [granting cross-complainant leave to amend pleadings
in resisting a special motion to strike incompatible with statute's quick dismissal remedy].)
FN7. In Vogel, the appellate court held a plaintiff's failure to plead a legally sufficient claim for defamation
was fatal to his opposition to the special motion to strike, but reached the evidentiary issues because the
defect in pleadings was never raised in the trial court. (Vogel, supra, 127 Cal.App.4th at p. 1019.) Here,
by contrast, Gilbert repeatedly objected in the trial court that Sykes's allegations lacked specificity and/or
were inadequate to support a claim for defamation.
"'The general rule is that the words constituting an alleged libel must be specifically identified, if not
pleaded verbatim, in the complaint.'" (Vogel, supra, 127 Cal.App.4th at p. 1017, fn. 3, quoting Kahn v.
Bower (1991) 232 Cal.App.3d 1599, 1612, fn. 5.)
Sykes's allegation that Gilbert misstated the content of unspecified communications between him and
Gilbert relating to unspecified procedures that he performed is a paradigm of vagueness, and does not
even come close to the specificity required to state an actionable libel claim. (See Dowling, supra, 85 Cal.
App.4th at p. 1421.) The charge contains no averment of a "provably false factual assertion," which is
indispensable to any claim for defamation. (Seelig, supra, 97 Cal.App.4th at p. 809.)
Although we could well stop here, we also note that Sykes's evidentiary showing was also deficient. The
gist of Sykes's charge is that Gilbert captioned the after photo with the question, "I was told by my doctor
that this was a good result-that I looked better after his surgery-what do you think?" To prove the
insinuation was defamatory, Sykes averred that he saw Gilbert only two and one-half, not five months
after the surgery, and that he did not tell her it was a "good result," only that she was "healing well."
But Gilbert produced deposition testimony from Sykes that he told her on April 21 the results were "good
and improving." Sykes may not impeach his own sworn testimony with contrary self-serving averments.
(Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1522.) The fact there was a two and one-
half month discrepancy between the date of the photo and the date of Sykes's assurance that the results
were "good" did not detract from the essential truth of the charge. Even if the representation with regard
to the time frame was inaccurate, Sykes utterly failed to show, by clear and convincing evidence, that it
was made with actual malice, i.e., "knowledge that it was false or with reckless disregard of whether it was
false or not." (New York Times Co. v.. Sullivan (1964) 376 U.S. 254, 279-280 [11 L.Ed.2d 686, 706]; see
Vogel, supra, 127 Cal.App.4th at pp. 1017-1018.)
For all of the above reasons, the "communication misstatements" allegation did not carry Sykes's burden
of showing a probability of prevailing on the merits.
D. "Under-the-table" Compensation
The last operative defamation allegation is that Gilbert's Web site "falsely suggests that Dr. Sykes was
compensated for the procedures 'under the table.' "As the source for this charge, Sykes points to the
Red Flags link with a page captioned "Things to look out for" with the sub-caption: "Doctors I would be
cautious of." Therein, Gilbert includes a list of 10 warning signs to watch for when choosing a plastic
surgeon, including: "If they seem preoccupied or distracted,""If they recommend more procedures than
what you are seeking!" and "If a doctor downplays the risks or does not explain the risks of the procedure
in detail." The seventh item on the list says: "RUN if a doctor asks you to pay cash under the table for any
part of the surgery. This says a lot about their ethics." Sykes claims it is a question of fact whether this
statement was susceptible of an interpretation that Gilbert was referring to him. We disagree.
Whether a statement is reasonably susceptible of a defamatory interpretation is a question of law for the
court. (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 647.) "Where the words or other matters which
are the subject of a defamation action are of ambiguous meaning, or innocent on their face and
defamatory only in the light of extrinsic circumstances, the plaintiff must plead and prove that as used, the
words had a particular meaning, or 'innuendo,' which makes them defamatory." (Id. at p. 645, italics
added.) Sykes failed to carry his burden in either respect.
Nowhere on the Web site does Gilbert ever state or imply that Sykes accepted cash under the table. The
cross-complaint contains no explanation how a statement made about doctors generally suggests that
Sykes engaged in such unethical behavior.
Sykes's name is not mentioned once on the entire Red Flags link or its "Things to look out for""Doctors I
would be cautious of" page. The "under the table" statement is couched as one of the 10 warning signs to
look out for when choosing a doctor. More importantly, the entire section carries a significant preface not
mentioned by Sykes that dispels any notion Gilbert is referring specifically to him: "[T]his is based on my
own experience and is solely of MY own opinion after consulting with revision doctors all over the United
States, having multiple revisional surgeries, and just researching as much as possible." (Italics added.)
No reasonable reader of the Red Flags list who also read its preface would conclude that Gilbert was
charging Sykes with each unscrupulous practice mentioned therein. Yet that is exactly the notion Sykes
seeks to advance by claiming that one item on the list defamed him.
There is another, more compelling, reason why the under-the-table warning cannot give rise to a cause
of action. Even if it could be understood to refer to Sykes, he offered no evidence that it was false.
Conspicuously absent from Sykes's declaration in opposition to the motion is any denial that he accepted
"cash under the table."
By failing to deny the charge of under-the-table payments, Sykes has tacitly admitted that the challenged
statement was substantially true. (Vogel, supra, 127 Cal.App.4th at pp. 1021-1022.) Sykes has totally
failed to carry his burden of showing, by"clear and convincing evidence," that the imputation of under-the-
table payments was false. (Blatty v. New York Times Co. (1986) 42 Cal.3d 1033, 1042 (Blatty ).)
V. Other Torts
The constitutional privilege applies not merely to defamation but to "all claims whose gravamen is the
alleged injurious falsehood of a statement." (Blatty, supra, 42 Cal.3d at p. 1042). Thus, the collapse of
Sykes's defamation claim spells the demise of all other causes of action in the cross-complaint such as
intentional and negligent interference with economic advantage and intentional infliction of emotional
distress, all of which allegedly arise from the same publications on Gilbert's Web site. (See Seelig, supra,
97 Cal.App.4th at p. 812.) As the state Supreme Court observed, "'to allow an independent cause of
action for the intentional infliction of emotional distress, based on the same acts which would not support
a defamation action, would allow plaintiffs to do indirectly what they could not do directly. It would also
render meaningless any defense of truth or privilege.'" (Fellows v. National Enquirer, Inc. (1986) 42 Cal.
3d 234, 245, quoting Flynn v. Higham (1983) 149 Cal.App.3d 677, 682.)
Sykes maintains, however, that his claims for infliction of emotional distress and interference with
economic advantage must be allowed to proceed because they are not based on the allegedly
defamatory communications, but on Gilbert's use of a Google ™ Sponsored Links function, which
"constitutes a discrete item of misconduct." Not so.
According to Sykes's 2005 cross-complaint and declaration, a Google ™ search of the words "Jonathan
Sykes plastic surgery" would bring up Gilbert's Web site as a prominent result under the Sponsored Links
portion of the "Results" page.
The only effect of the Sponsored Links function is to draw more attention to Gilbert's Web site than it
otherwise might attract. But the statements on Gilbert's Web site either give rise to defamation claims or
they do not. Nonactionable communications do not expose the speaker to liability merely because they
are likely to reach a greater number of recipients.
The Sponsored Links allegation does not save the cross-complaint from dismissal under section 425.16.
DISPOSITION
The judgment is reversed. The cause is remanded to the trial court with directions to grant Gilbert's
special motion to strike and to conduct further proceedings in accordance with section 425.16. Gilbert
shall recover her costs on appeal. (Cal. Rules of Court, rule 8.276(a)(2).) (CERTIFIED FOR
PUBLICATION.)
We concur: ROBIE, Acting P.J., and CANTIL-SAKAUYE, J.
No. C050766 Jan. 26, 2007
Georgette GILBERT, Plaintiff, Cross-defendant and Appellant,
v. Jonathan SYKES, Defendant, Cross-complainant and Respondent.
APPEAL from a judgment of the Superior Court of Sacramento County, Thomas M. Cecil, Judge. Reversed with directions.
COUNSEL
DLA Piper RudnickGray Cary US, Kathryn E. Karcher, Megan Whyman Olesek, Jerold L. Hersh and Gregory J. Lundell;
Sheppard Mullin Richter & Hampton, Guylyn R. Cummins and James M. Chadwick; Nolen, Saul & Brelsford and Rudy
Nolen; Nolen & Associates and Rudy Nolen for Plaintiff, Cross-defendant and Appellant.
Wilke, Fleury, Hoffelt, Gould & Birney, Philip R. Birney, Danielle M. Guard and Daniel L. Baxter for Defendant, Cross-
complainant and Respondent.
OPINION
BUTZ, J.
In our youth and celebrity worshipping culture, the benefits and risks of plastic surgery are a hot topic.
The number of people, especially women, who have had minimally invasive cosmetic surgery has grown
exponentially in the past several years.
Jonathan Sykes, M.D., is a prominent professor and practitioner of plastic and reconstructive surgery at
the University of California, Davis Medical Center (UCD Medical Center) in Sacramento. Sykes
performed a series of facial cosmetic procedures on Georgette Gilbert in February 2003.
Gilbert was appalled at the results. She not only sued Sykes for medical malpractice, but
created a Web site relating her experiences with Dr. Sykes (including before and after
photos), as well as information and advice for those considering plastic surgery.
Sykes filed a multi-tort cross-complaint in the malpractice action, alleging he was defamed and
suffered loss of business as a result of false and misleading statements appearing on Gilbert's
Web site. Gilbert responded with a special motion to strike the cross-complaint. (Code Civ.
Proc., § 425.16.) [FN1] The trial court denied the motion, finding that Sykes had established a
probability of prevailing on his cross-complaint.
FN1. Undesignated statutory references are to the Code of Civil Procedure.
Exercising our power of independent review, we shall reverse. While we
agree with the trial court's finding that the cross-complaint qualified for
SLAPP [FN2] treatment under the statute, we conclude, contrary to the trial
court's finding, that Sykes was a limited purpose public figure and
therefore had the burden of making a prima facie showing that the
statements in the Web site were both false and published with actual
malice. Because we find that Sykes failed to carry that burden, we shall
vacate the order with directions to grant Gilbert's motion.
FN2. "SLAPP stands for 'Strategic Lawsuit Against Public Participation.'"(Lam v. Ngo (2001) 91 Cal.App.4th 832, 835, fn. 1.)
For clarity, we refer to a "SLAPP" or "anti-SLAPP" motion as a "special motion to strike"-the language used in the statute (§
425.16, subd. (b)(1)).
FACTUAL BACKGROUND
The Surgery
Dr. Sykes is the Director of Facial Plastic and Reconstructive Surgery at UCD Medical Center in Sacramento. Sykes was
profiled in a 2003 article in Sacramento magazine entitled Top Doctors, which lauds him as "a nationally recognized
educator and leader in minimally invasive esthetic and laser surgery [,][who] has performed over 10,000 surgical
procedures, is board-certified in otolaryngology and facial plastic surgery, and has published three books and over 90
articles on facial plastic surgery."
Gilbert became interested in plastic surgery after another doctor recommended that she might benefit from a brow lift. She
approached Sykes because she was acquainted with him and thought of him as a friend. After consulting with Sykes,
Gilbert agreed to undergo five separate plastic surgical procedures to her face. Sykes told her that the goal was to make
her look natural after the surgery and that "we didn't want to make too much change." The surgery was performed in
February 2003.
During an April 2003 post-surgical visit, Sykes told Gilbert the results were "very good and improving."
Gilbert did not agree. She was extremely unhappy with the results, asserting that she could not fully
close her eyes, her eyebrows were higher than she expected, one eyebrow was higher than
the other and she had a permanently "surprised" look on her face. Beginning in late June 2003
Gilbert underwent four revision surgeries, performed by other doctors, to correct her
problems.
In May 2004, Gilbert brought a malpractice suit against Dr. Sykes and the Regents of the University of
California (the Regents) in connection with the surgery performed by Sykes.
Gilbert's Web site
In late February or early March 2005, Gilbert established a Web site (with the address <http:
//www.mysurgerynightmare.com> [currently accessible as of 1/26/07] ) (hereafter Web site). The Web
site contains five hyperlinks (or link(s) that take the reader to an additional page of information), which we
discuss below:
At the Home Page of the Web site, Gilbert explains: "I started this Web site so I can share my
experience with plastic surgery. My hopes are to inform and educate because when I originally
looked into cosmetic surgery on the Internet there was very little information from a patients
[sic ] perspective, but a lot of information coming from the doctor's perspective. [¶] I will share
my experience with plastic surgery and show my original (untouched) before and after photos. If you still
wish to pursue plastic surgery after reading my story, I hope you learn from the information I provide so
you can make the best educated decision possible before going under the knife. I will give you
information and links on how to check what your doctor is certified in, any past lawsuits, information on
what to ask during your consult, and give you my take on what red flags to look out for." The Home Page
also lists several malpractice lawsuits that have been filed or are pending against Dr. Sykes.
The Before and After Photos link takes the viewer to two pairs of photographs taken before and after the
surgery performed by Sykes-one full view of Gilbert's face and another of just her eyes. Both after
pictures are captioned "Approximately [five] months after surgery." The after photographs show Gilbert
with a surprised, eyes-wide-open look. Above the eye photographs, Gilbert inserted the following caption:
"I was told by my doctor that this was a good result-that I looked better after his surgery-what do you
think?"
At the Selecting a Doctor link, a page of "useful information" features tips on selecting a plastic surgeon,
advice which Gilbert states is "MY own opinion after consulting with revision doctors all over the United
States, having multiple revisional surgeries, and just researching as much as possible."
At the Red Flags link, Gilbert discusses "Things to look out for" with disclaimers describing certain traits
under the heading, "Doctors I would be cautious of."
The Final Thoughts/Contact Me link recounts Gilbert's experience with Sykes. She said that Sykes told
her she would look natural after the surgery and she was under the impression the change would be
subtle. Instead, she wrote, the "surgery was the biggest regret of my life. I didn't need [five] procedures
and I had no idea what I was getting myself into. What I thought was going to be subtle turned into a
nightmare. I've spent over two years of my life meeting with doctors all over the United States and having
revision surgeries in hopes to get back to how I once looked or at the very least look normal again."
Litigation
When Gilbert did not submit to Sykes's request to close down her Web site, Sykes and the Regents filed
a cross-complaint for damages and injunctive relief [FN4] based on publications appearing in the Web
site that were allegedly defamatory and caused Sykes emotional distress and loss of business. The
crucial charging accusations of the cross-complaint appear in paragraph 7, which states:
"In late February or early March 2005, ... [Gilbert] established a Web site at www.mysurgerynightmare.
com (Web site). In this Web site, [Gilbert] (after identifying Dr. Sykes as the 'director of facial plastic and
reconstructive surgery at [UCD] Medical Center') presents, inter alia, misleading 'before and after' facial
photographs in connection with the procedures performed by Dr. Sykes (photos that were taken after
additional and significant cosmetic surgery procedures not performed by Dr. Sykes), falsely indicates that
Dr. Sykes recommended and performed procedures that [Gilbert] did not need/want, misstates the
content of communications between [Gilbert] and Dr. Sykes relating to the procedures performed by Dr.
Sykes, and falsely suggests that Dr. Sykes was compensated for the procedures 'under the table.'"
FN4. Sykes abandoned his attempt to force Gilbert to shut down her Web site after the trial court denied
his ex parte application for a temporary restraining order.
Sykes also alleged that Gilbert obtained from Google ™ or possibly other search engines a "sponsored
link," such that a search for "Jonathan Sykes" would bring up a link to Gilbert's Web site.
Gilbert responded by filing a special motion to strike the cross-complaint (see fn. 2, ante ). Her moving
papers claimed that the Web site's publications were protected by the First Amendment, and that neither
Sykes nor the Regents could establish an actionable claim for defamation or any other tort.
Evidence was submitted by both sides and the trial court held a hearing on the matter. The court
ultimately issued an order granting the special motion as to the Regents but denying it as to Sykes. While
finding that section 425.16 applied to the cross-complaint, the court also ruled that Sykes was not a
limited purpose public figure, which would have required a showing that Gilbert's statements were uttered
with actual malice. Stated the court: "The fact he has published articles and books on plastic surgery and
appeared on television shows does not mean there is a public controversy relating to Ms. Gilbert's plastic
surgery." Finding that Sykes had made the requisite prima facie showing that Gilbert defamed him with
respect to the before and after photos as well as statements appearing in the Web site, the court denied
the special motion to strike.
The Regents have not appealed from the order dismissing them as cross-complainants. Gilbert appeals
from the order denying her special motion to strike as to Sykes.
DISCUSSION
I. General Principles
"Code of Civil Procedure section 425.16 was enacted in 1992 to dismiss at an early stage nonmeritorious
litigation meant to chill the valid exercise of the constitutional rights of freedom of speech and petition in
connection with a public issue. [Citation.] These meritless suits, referred to under the acronym SLAPP, ...
are subject to a special motion to strike unless the person asserting that cause of action establishes by
pleading and affidavit a probability that he or she will prevail." (Sipple v. Foundation for Nat. Progress
(1999) 71 Cal.App.4th 226, 235 (Sipple ), fn. omitted, citing Lafayette Morehouse, Inc. v. Chronicle
Publishing Co. (1995) 37 Cal.App.4th 855, 858 and § 425.16, subd. (b)(1).) "Claims based on these acts
are subject to a special motion to strike unless the court determines that the plaintiff has established that
there is a probability of prevailing on the merits." (Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569,
1575-1576 (Ampex ).)
"'If the defendant establishes a prima facie case, then the burden shifts to the plaintiff to establish "'a
probability that the plaintiff will prevail on the claim,'" i.e., "make a prima facie showing of facts which
would, if proved at trial, support a judgment in plaintiff's favor." '" (Dowling v. Zimmerman (2001) 85 Cal.
App.4th 1400, 1417 (Dowling ).)
The trial court's ruling on a section 425.16 motion is reviewed de novo. (Terry v. Davis Community
Church (2005) 131 Cal.App.4th 1534, 1544 (Terry ).) We exercise our independent judgment to
determine not only whether the anti-SLAPP statute applies, but whether the complainant has established
a reasonable probability of prevailing on the merits. (Ibid.)
II. Whether Section 425.16 Applies
Before reaching the merits of the order, we must address Sykes's initial contention that, contrary to the
trial court's ruling, section 425.16 did not even apply to the cross-complaint.[FN5]
FN5. Although he did not file a cross-appeal, Sykes has standing to make this argument for the purpose
of demonstrating that the trial court errors of which Gilbert complains caused her no prejudice.
(Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2005) ¶ 8:196, p. 8-
124; see Code Civ. Proc., § 906.)
A lawsuit qualifies as a special motion to strike under section 425.16 if it arises from an act "'in
furtherance of the person's right of petition or free speech under the United States or California
Constitution.' ?7D (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 892 (Wilbanks ), quoting § 425.16,
subd. (b)(1).) The statute defines acts in furtherance of free speech or petition as including statements
that are made (1) in a public forum and (2) in connection with an issue of public interest. (Wilbanks, at p.
892, citing § 425.16, subd. (e).)
While not contesting that the Internet is a public forum, Sykes maintains that the Web site does not
concern a matter of public interest. He points out that "it is not enough that the statement refer to a
subject of widespread public interest; the statement must in some manner itself contribute to the public
debate." (Wilbanks, supra, 121 Cal.App.4th at p. 898.) Sykes asserts that statements on the Web site do
not contribute to the public debate because they only concern Gilbert's interactions with him. He is wrong.
The public interest requirement of section 425.16, subdivision (e)(3) must be "'construed broadly' so as
to encourage participation by all segments of our society in vigorous public debate related to issues of
public interest." (Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 808 (Seelig ).) The
Legislature inserted the "broad construction" provision out of concern that judicial decisions were
construing that element of the statute too narrowly. (Briggs v. Eden Council for Hope & Opportunity
(1999) 19 Cal.4th 1106, 1120 (Briggs ), citing Stats.1997, ch. 271, § 1.)
Sykes does not dispute that plastic surgery is a subject of widespread public interest and discussion.
Indeed, a Google ™ search (at <http:// www.google.com/> [as of 1/26/07] ) using the words "pros" "cons"
"cosmetic" and "surgery" returns a virtual deluge of articles and Web sites devoted to the well-known
controversy surrounding plastic surgery. Elective cosmetic surgery was the subject of the popular
television series Extreme Makeover, in which it is portrayed as a positive, life-transforming event. Yet the
widespread and indiscriminate use of plastic surgery by celebrities and the public has also generated a
firestorm of negative publicity and comment. (See, e.g., Awful Plastic Surgery-the good, bad, and ugly of
celebrity plastic surgery <http:// www.awfulplasticsurgery.com> [as of 1/26/07]; Kuczynski, Beauty Junkies-
Inside Our $15 Billion Obsession With Cosmetic Surgery (2006).)
Sykes is a widely known plastic surgeon, practicing at a prestigious medical institution, who has written
numerous articles on plastic surgery, appeared in local television shows on the subject and advertised in
the Sacramento media market.
Gilbert's Web site contributed toward the public debate about plastic surgery in at least two ways: First,
assertions that a prominent and well-respected plastic surgeon produced "nightmare" results that
necessitated extensive revision surgery contributes toward public discussion about the benefits and risks
of plastic surgery in general, and particularly among persons contemplating plastic surgery as a means of
looking younger or improving their appearance. (See Terry, supra, 131 Cal.App.4th at p. 1547
[allegations that a church leader engaged in an inappropriate relationship with a teenage minor in his
congregation constituted a matter of public interest because it implicated "society's interest in protecting
minors from predators, particularly in places such as church programs that are supposed to be safe"];
Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146, 1161 (Annette F.) [charges of domestic abuse by
a lesbian partner in a couple that had achieved national prominence through adoption litigation was an
issue of public interest because it "potentially affected a large number of children and adoptive parents
beyond the direct participants"]; Sipple, supra, 71 Cal.App.4th at p. 238 [wife-beating allegations against
prominent political consultant raised issue of public interest, where he "was able to capitalize on domestic
violence issues in order to further his career"].)
Second, a review of the entire Web site shows that it is not limited to Gilbert's interactions with Sykes. The
Web site contains advice, information and a contact page where readers can share their own
experiences. At the Selecting a Doctor link, a page on "Useful Information" has tips on choosing a plastic
surgeon, including references to other Web sites and resources. A Red Flags link lists "Things to look out
for" or warning signs to look for when selecting a doctor to perform the surgery. A Final Thoughts/Contact
Me link features Gilbert's ruminations about plastic surgery in general, not all of it negative. Clearly, the
Web site was not limited to attacking Sykes, but contributed to the general debate over the pros and cons
of undergoing cosmetic surgery.
For the foregoing reasons, we agree with the trial court's finding that Gilbert's Web site concerned a
matter of public interest within the meaning of section 425.16.
III. Limited Purpose Public Figure
The most important question we face is whether Sykes was a limited purpose public figure for purposes of
his defamation claims. "Copp v. Paxton (1996) 45 Cal.App.4th 829, 845-846 [ (Copp) ] sets forth the
elements that must be present in order to characterize a plaintiff as a limited purpose public figure. First,
there must be a public controversy, which means the issue was debated publicly and had foreseeable
and substantial ramifications for nonparticipants. Second, the plaintiff must have undertaken some
voluntary act through which he or she sought to influence resolution of the public issue. In this regard it is
sufficient that the plaintiff attempts to thrust him or herself into the public eye. And finally, the alleged
defamation must be germane to the plaintiff's participation in the controversy." (Ampex, supra, 128 Cal.
App.4th at p. 1577.)
Contrary to the trial court's ruling, Sykes stands out as an archetypical example of a "limited purpose" or
"vortex" public figure. (Annette F., supra, 119 Cal.App.4th at p. 1163.) As we have explained, the relative
merits of plastic surgery is a subject that has garnered national attention and is the focus of widespread
public interest. Gilbert produced evidence showing that Sykes has thrust himself into that debate by
appearing on local television shows as well as writing numerous articles in medical journals and beauty
magazines, touting the virtues of cosmetic and reconstructive surgery. Sykes has also testified as an
expert witness on the subject and advertised his services in the local media.
These facts provide compelling proof that Sykes "undertook 'some voluntary act through which he seeks
to influence the resolution of the public issues involved,'" and took "'affirmative actions'" to thrust himself
into the "'forefront of [a] particular public controvers[y].'" (Copp, supra, 45 Cal.App.4th at p. 845, quoting
Reader's Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 254-255.) It is not even necessary to
show that Sykes actually achieved prominence in the public debate. It is sufficient that he "'attempt[ed] to
thrust himself into the public eye' [citation] or to influence a public decision." (Copp, supra, at pp. 845-
846.)
Sykes attempts to avoid this conclusion by playing fast and loose with the definitions. Sykes argues he
was not a limited purpose public figure because there was no preexisting public "'controversy' regarding
the procedures performed by Dr. Sykes on Ms. Gilbert." (Italics added.) This claim is at war with the
concept of a limited purpose public figure.
A person becomes a limited public figure by injecting himself into the public debate about a topic that
concerns a substantial number of people. Once he places himself in the spotlight on a topic of public
interest, his private words and conduct relating to that topic become fair game. Sykes would turn this
formulation on its head. He would require that the plaintiff generate a broad public controversy through
private words or conduct before he could be deemed a public figure, an atrophic definition that would
virtually eliminate all vortex public figure candidates.
If a complainant's private conduct had to generate a public controversy before he could be deemed a
public figure, those who exposed his controversial behavior in the first place would face defamation
liability for inaccurate statements made in good faith, while those who joined in the discussion afterward
would be immune from such claims unless it was shown that their statements were uttered with malice.
That is not the law. Indeed, defamation decisions finding the complainants to be vortex public figures
have typically involved persons who claimed they were defamed for private conduct after they injected
themselves into matters of general public discussion or controversy. (See, e.g., Terry, supra, 131 Cal.
App.4th at pp. 1547-1548; Sipple, supra, 71 Cal.App.4th at p. 238; Copp, supra, 45 Cal.App.4th at pp.
846-847.)
Here, Sykes's sought-after prominence as an expert in and advocate for plastic surgery as a means of
personal enhancement transformed him into a limited purpose public figure. As such, statements alleging
that his surgical procedures resulted in disfigurement or required expensive multiple corrective surgeries
are entitled to constitutional protection.
We conclude that Sykes was a vortex public figure who invited public attention and comments regarding
his surgical practice. Thus, to prevail on a defamation claim, he was required to prove by clear and
convincing evidence not only that Gilbert's claims were false, but that they were uttered with actual
malice. (Annette F., supra, 119 Cal.App.4th at p. 1166.)
Having resolved these preliminary but important issues, we turn to the specific allegations of the cross-
complaint and whether Sykes met his burden of producing prima facie evidence to support his defamation
claims.
IV. Probability of Success
Since Gilbert established that she was sued after exercising her First Amendment right to free speech in
a public forum in connection with an issue of public interest, the burden shifted to Sykes to establish that
there is a probability he will prevail on his claims. (§ 425.16, subd. (b)(1); Evans v. Unkow (1995) 38 Cal.
App.4th 1490, 1496.) To meet this burden, Sykes must "'demonstrate the [cross-]complaint is legally
sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the
evidence submitted by the plaintiff is credited.' [Citation.] 'The burden on the plaintiff is similar to the
standard used in determining motions for nonsuit, directed verdict, or summary judgment.'" (Seelig,
supra, 97 Cal.App.4th at p. 809.) The showing must be made through "competent and admissible
evidence." (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.
4th 1219, 1236 (Tuchscher ); see also Evans, supra, 38 Cal.App.4th at pp. 1497-1498.) Thus,
declarations that lack foundation or personal knowledge, or that are argumentative, speculative,
impermissible opinion, hearsay, or conclusory are to be disregarded. (See Tuchscher, supra, at pp.
1238, 1240.)
"In deciding the question of potential merit, the trial court considers the pleadings and evidentiary
submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not
weigh the credibility or comparative probative strength of competing evidence, it should grant the motion
if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to
establish evidentiary support for the claim." (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811,
821 (Wilson ).)
"Defamation is an invasion of the interest in reputation. The tort involves the intentional publication of a
statement of fact which is false, unprivileged, and has a natural tendency to injure or which causes
special damage." (Ringler Associates Inc. v. Maryland Casualty Co. (2000) 80 Cal.App.4th 1165, 1179
(Ringler.) "There can be no recovery for defamation without a falsehood. [Citation.] Thus, to state a
defamation claim that survives a First Amendment challenge, plaintiff must present evidence of a
statement of fact that is provably false. (Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 20 [111 L.Ed.
2d 1, 18].) 'Statements do not imply a provably false factual assertion and thus cannot form the basis of a
defamation action if they cannot "'reasonably [be] interpreted as stating actual facts' about an individual."
[Citations.] Thus, "rhetorical hyperbole,""vigorous epithet[s],""lusty and imaginative expression[s] of ...
contempt," and language used "in a loose, figurative sense" have all been accorded constitutional
protection. [Citations.]' ... The dispositive question after the Milkovich case is whether a reasonable trier
of fact could conclude that the published statements imply a provably false factual assertion." (Seelig,
supra, 97 Cal.App.4th at p. 809, italics added).)
Sykes alleges that Gilbert's Web site defamed him in four different ways: (1) presenting misleading before
and after facial photographs in that the after photos were taken after "additional and significant cosmetic
surgery" performed by others; (2) falsely indicating that Sykes recommended and performed procedures
that Gilbert did not need or want; (3) misstating "the content of communications" relating to the
procedures he performed; and (4) falsely suggesting that Sykes was compensated for procedures "under
the table."
For the reasons that follow, we conclude that Sykes has failed to carry his burden of demonstrating the
probable merit of a defamation claim based on any of these allegations.
A. Before and After Photographs
Gilbert posted two sets of before and after photographs on her Web site with captions "Approximately one
month before surgery" and "Approximately two weeks before surgery," each paired with a photo
captioned "Approximately [five] months after surgery." (Italics added.) Sykes's cross-complaint alleged
that the photographs were misleading in that the after photo was taken after Gilbert had additional
revision surgical procedures performed by other plastic surgeons. Gilbert, however, debunked this
accusation in an uncontradicted declaration, wherein she stated that the after photograph was taken after
Sykes's procedures and before any revision surgery was done on her face. Gilbert added that her facial
muscles were at rest and her face in repose when the photographs were taken, thereby laying to rest any
speculation that she tried to distort her natural appearance in order to cast the results of the surgery in a
bad light.
"'In all cases of alleged defamation, ... the truth of the offensive statements or communication is a
complete defense against civil liability, regardless of bad faith or malicious purpose.'" (Ringler, supra, 80
Cal.App.4th at p. 1180.) Because Gilbert submitted uncontradicted evidence the photographs were
indeed what they purported to be, truth as a defense was established.
Sykes responds by focusing on minute details that do not detract from the essential accuracy of the
photographs. He seizes on Gilbert's admission in her deposition that her first revision surgery was
performed on June 24, 2003 (about four and one-half months after her February 5 surgery), and notes
that at one time, Gilbert's Web site claimed the after photo was taken five and one-half months after the
surgery.
The slight discrepancy in time frame does not provide Sykes with an escape hatch from the truth defense.
"'It is well settled that a defendant is not required in an action of libel to justify every word of the alleged
defamatory matter; it is sufficient if the substance, the gist, the sting of the libelous charge be justified,
and if the gist of the charge be established by the evidence the defendant has made his case.' [Citation.]
'"[A] slight inaccuracy in the details will not prevent a judgment for the defendant, if the inaccuracy does
not change the complexion of the affair so as to affect the reader of the article differently...."'" (Sipple,
supra, 71 Cal.App.4th at p. 244, quoting Kurata v. Los Angeles News Pub. Co. (1935) 4 Cal.App.2d 224,
227.) Whether the photograph was taken five or even five and one-half months after the surgery rather
than four and one-half is of little significance. The crucial point is that the photograph was taken after
Sykes's surgery but before other doctors performed their revision surgeries. Because it was, the "gist"
and "sting" of the allegedly libelous charge was shown to be true, and Sykes cannot base a defamation
claim upon it. (Hughes v. Hughes (2004) 122 Cal.App.4th 931, 936.)
Sykes also points to the declaration of Julie Hamilton, which he submitted in opposition to the special
motion to strike. In it, Hamilton declared she took screen snapshots of the photos on Gilbert's Web site
with her Apple computer, aligned the two images, and then created a split-screen view. Based on these
statements, Sykes argues that Gilbert's photos were taken from different angles and on a different scale.
Again, Sykes seeks to turn the court's attention away from the forest by focusing on the trees, or perhaps
more accurately, a branch of one tree. Hamilton's declaration establishes, at most, that Gilbert did not
compose her photographs with scientific precision. But the average reader cares little about geometrical
accuracy-what is important is that the photographs were substantially accurate depictions of what
Gilbert's face looked like before and after Sykes's surgery. Because Hamilton's declaration did not negate
this fact, it did not help prove a prima facie case of defamation.
Since the before and after photographs were substantially accurate representations of what took place
with respect to Sykes's surgery, they were not defamatory as a matter of law.
B. Procedures that Gilbert Did Not Need/Want
Sykes next alleges that the Web site falsely indicated that Sykes recommended and performed
procedures that Gilbert did not "need" or "want." Sykes finds support for this charge from two sources:
First, a passage that appeared on an earlier version of the Web site (since removed), which stated: "I met
with [Dr. Sykes], the director of facial plastic and reconstructive surgery at [UCD] Medical Center. I knew
him for a few years from my ex-boyfriend and had a lot of trust in him based on knowing and seeing him
over the years and his impressive sounding title. I really wasn't sure what to expect when I met with him.
He quickly suggested I would benefit from having five procedures to my face. I was told that if I did the
suggested procedures, I would maintain my looks longer and age better into my late thirties and forties.
He said I could be back to work in two weeks and that it would be subtle. Wow, he made it sound simple
and easy-sign me up!"
Second, Sykes points to Gilbert's "final thoughts" at her Final Thoughts/Contact Me link: "For me surgery
was the biggest regret of my life. I didn't need [five ] procedures and I had no idea what I was really
getting myself into. What I thought was going to be subtle turned into a nightmare." (Italics added.)
Weaving these two passages together, Sykes claims they are libelous because (1) he did not "quickly"
suggest having the procedures, but only did so after Gilbert informed him of her concerns; (2) he never
told her she "needed" five procedures or any procedure for that matter; and (3) he did not state the
changes would be subtle; in fact Gilbert told him to be "aggressive." His arguments are unpersuasive for
several reasons:
First, Sykes does not deny that he suggested a variety of procedures and indeed, his deposition
testimony admits as much. The timing of the suggestion during his conference with Gilbert is of no
consequence because it has no impact on Sykes's reputation in the community. (Civ.Code, § 46.) No
plastic surgeon can claim he lost business because his suggestions were too "quick."
Second, nowhere in the Web site does Gilbert state or imply that Sykes told her she "needed" the
surgeries. Indeed, her use of the word "suggested" connotes just the opposite. Gilbert's wistful closing
remark that she did not "need" the procedures, read in the proper context, simply indicates her regret at
her eagerness to go ahead with the surgery without becoming fully informed, and her sorrow at the
unfortunate consequences that ensued. No injurious falsehood can be extracted from Gilbert's statement
that she did not "need" five procedures.
Third, Gilbert's statement that she thought the changes would be "subtle" is not very different from
Sykes's own deposition testimony on the subject-"I told her that my goal was to make it so that at the end
of her healing process, which could take several months, that she look natural after surgery and that we
didn't want to make too much change." (Italics added.) These statements could be reasonably interpreted
by a prospective patient as an assurance that the changes effected by the surgical procedures would be
subtle.
The "gist" and "sting" of Gilbert's assertion that Sykes assured her the changes would be "subtle" was
substantially true, regardless of whether Sykes ever used the word. [FN6] Thus, the imputation was
protected by the truth defense. (Ringler, supra, 80 Cal.App.4th at p. 1181, citing Campanelli v. Regents
of University of California (1996) 44 Cal.App.4th 572, 581-582.)
FN6. Gilbert testified at her deposition that Sykes did indeed use the word "subtle" to describe the
intended result of his procedures.
Fourth and finally, Gilbert's alleged failure to disclose her direction to Sykes to "be aggressive" with the
surgery does not leave her open to a charge of defamation. While she may have told him to be
aggressive, she certainly did not intend for him to make her look aggressive, which was the asserted
unhappy result of the surgery.
C. Misstating "the Content of Communications" Between Gilbert and Sykes
The third major charge of the cross-complaint is that Gilbert's Web site "misstates the content of
communications between [Gilbert] and Dr. Sykes relating to the procedures performed by Dr. Sykes."
This allegation is far too vague and amorphous to support a cause of action for defamation.
In order to successfully resist a special motion to strike, a plaintiff must "'"state[ ] and substantiate[ ] a
legally sufficient claim."' [Citations.] Put another way, the plaintiff 'must demonstrate that the complaint is
both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable
judgment if the evidence submitted by the plaintiff is credited.'" (Wilson, supra, 28 Cal.4th at p. 821, italics
added.) If the pleadings are not adequate to support a cause of action, the plaintiff has failed to carry his
burden in resisting the motion. (See Vogel v. Felice (2005) 127 Cal.App.4th 1006, 1018-1019 (Vogel );
[FN7] Drum v. Bleau, Fox & Associates (2003) 107 Cal.App.4th 1009, 1018-1019["[S]pecial motions to
strike pursuant to section 425.16 operate "like a demurrer or motion for summary judgment in 'reverse.'"'
(Briggs, supra, 19 Cal.4th at p. 1123, citing College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704,
718-719 [plaintiff opposing Code Civ. Proc., § 425.13, subd. (a) motion, must demonstrate existence of
legally sufficient claim that is supported by competent, admissible evidence]"], Drum was disapproved on
another ground in Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055, 1065; see also Simmons v. Allstate
Ins. Co. (2001) 92 Cal.App.4th 1068, 1073-1074 [granting cross-complainant leave to amend pleadings
in resisting a special motion to strike incompatible with statute's quick dismissal remedy].)
FN7. In Vogel, the appellate court held a plaintiff's failure to plead a legally sufficient claim for defamation
was fatal to his opposition to the special motion to strike, but reached the evidentiary issues because the
defect in pleadings was never raised in the trial court. (Vogel, supra, 127 Cal.App.4th at p. 1019.) Here,
by contrast, Gilbert repeatedly objected in the trial court that Sykes's allegations lacked specificity and/or
were inadequate to support a claim for defamation.
"'The general rule is that the words constituting an alleged libel must be specifically identified, if not
pleaded verbatim, in the complaint.'" (Vogel, supra, 127 Cal.App.4th at p. 1017, fn. 3, quoting Kahn v.
Bower (1991) 232 Cal.App.3d 1599, 1612, fn. 5.)
Sykes's allegation that Gilbert misstated the content of unspecified communications between him and
Gilbert relating to unspecified procedures that he performed is a paradigm of vagueness, and does not
even come close to the specificity required to state an actionable libel claim. (See Dowling, supra, 85 Cal.
App.4th at p. 1421.) The charge contains no averment of a "provably false factual assertion," which is
indispensable to any claim for defamation. (Seelig, supra, 97 Cal.App.4th at p. 809.)
Although we could well stop here, we also note that Sykes's evidentiary showing was also deficient. The
gist of Sykes's charge is that Gilbert captioned the after photo with the question, "I was told by my doctor
that this was a good result-that I looked better after his surgery-what do you think?" To prove the
insinuation was defamatory, Sykes averred that he saw Gilbert only two and one-half, not five months
after the surgery, and that he did not tell her it was a "good result," only that she was "healing well."
But Gilbert produced deposition testimony from Sykes that he told her on April 21 the results were "good
and improving." Sykes may not impeach his own sworn testimony with contrary self-serving averments.
(Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1522.) The fact there was a two and one-
half month discrepancy between the date of the photo and the date of Sykes's assurance that the results
were "good" did not detract from the essential truth of the charge. Even if the representation with regard
to the time frame was inaccurate, Sykes utterly failed to show, by clear and convincing evidence, that it
was made with actual malice, i.e., "knowledge that it was false or with reckless disregard of whether it was
false or not." (New York Times Co. v.. Sullivan (1964) 376 U.S. 254, 279-280 [11 L.Ed.2d 686, 706]; see
Vogel, supra, 127 Cal.App.4th at pp. 1017-1018.)
For all of the above reasons, the "communication misstatements" allegation did not carry Sykes's burden
of showing a probability of prevailing on the merits.
D. "Under-the-table" Compensation
The last operative defamation allegation is that Gilbert's Web site "falsely suggests that Dr. Sykes was
compensated for the procedures 'under the table.' "As the source for this charge, Sykes points to the
Red Flags link with a page captioned "Things to look out for" with the sub-caption: "Doctors I would be
cautious of." Therein, Gilbert includes a list of 10 warning signs to watch for when choosing a plastic
surgeon, including: "If they seem preoccupied or distracted,""If they recommend more procedures than
what you are seeking!" and "If a doctor downplays the risks or does not explain the risks of the procedure
in detail." The seventh item on the list says: "RUN if a doctor asks you to pay cash under the table for any
part of the surgery. This says a lot about their ethics." Sykes claims it is a question of fact whether this
statement was susceptible of an interpretation that Gilbert was referring to him. We disagree.
Whether a statement is reasonably susceptible of a defamatory interpretation is a question of law for the
court. (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 647.) "Where the words or other matters which
are the subject of a defamation action are of ambiguous meaning, or innocent on their face and
defamatory only in the light of extrinsic circumstances, the plaintiff must plead and prove that as used, the
words had a particular meaning, or 'innuendo,' which makes them defamatory." (Id. at p. 645, italics
added.) Sykes failed to carry his burden in either respect.
Nowhere on the Web site does Gilbert ever state or imply that Sykes accepted cash under the table. The
cross-complaint contains no explanation how a statement made about doctors generally suggests that
Sykes engaged in such unethical behavior.
Sykes's name is not mentioned once on the entire Red Flags link or its "Things to look out for""Doctors I
would be cautious of" page. The "under the table" statement is couched as one of the 10 warning signs to
look out for when choosing a doctor. More importantly, the entire section carries a significant preface not
mentioned by Sykes that dispels any notion Gilbert is referring specifically to him: "[T]his is based on my
own experience and is solely of MY own opinion after consulting with revision doctors all over the United
States, having multiple revisional surgeries, and just researching as much as possible." (Italics added.)
No reasonable reader of the Red Flags list who also read its preface would conclude that Gilbert was
charging Sykes with each unscrupulous practice mentioned therein. Yet that is exactly the notion Sykes
seeks to advance by claiming that one item on the list defamed him.
There is another, more compelling, reason why the under-the-table warning cannot give rise to a cause
of action. Even if it could be understood to refer to Sykes, he offered no evidence that it was false.
Conspicuously absent from Sykes's declaration in opposition to the motion is any denial that he accepted
"cash under the table."
By failing to deny the charge of under-the-table payments, Sykes has tacitly admitted that the challenged
statement was substantially true. (Vogel, supra, 127 Cal.App.4th at pp. 1021-1022.) Sykes has totally
failed to carry his burden of showing, by"clear and convincing evidence," that the imputation of under-the-
table payments was false. (Blatty v. New York Times Co. (1986) 42 Cal.3d 1033, 1042 (Blatty ).)
V. Other Torts
The constitutional privilege applies not merely to defamation but to "all claims whose gravamen is the
alleged injurious falsehood of a statement." (Blatty, supra, 42 Cal.3d at p. 1042). Thus, the collapse of
Sykes's defamation claim spells the demise of all other causes of action in the cross-complaint such as
intentional and negligent interference with economic advantage and intentional infliction of emotional
distress, all of which allegedly arise from the same publications on Gilbert's Web site. (See Seelig, supra,
97 Cal.App.4th at p. 812.) As the state Supreme Court observed, "'to allow an independent cause of
action for the intentional infliction of emotional distress, based on the same acts which would not support
a defamation action, would allow plaintiffs to do indirectly what they could not do directly. It would also
render meaningless any defense of truth or privilege.'" (Fellows v. National Enquirer, Inc. (1986) 42 Cal.
3d 234, 245, quoting Flynn v. Higham (1983) 149 Cal.App.3d 677, 682.)
Sykes maintains, however, that his claims for infliction of emotional distress and interference with
economic advantage must be allowed to proceed because they are not based on the allegedly
defamatory communications, but on Gilbert's use of a Google ™ Sponsored Links function, which
"constitutes a discrete item of misconduct." Not so.
According to Sykes's 2005 cross-complaint and declaration, a Google ™ search of the words "Jonathan
Sykes plastic surgery" would bring up Gilbert's Web site as a prominent result under the Sponsored Links
portion of the "Results" page.
The only effect of the Sponsored Links function is to draw more attention to Gilbert's Web site than it
otherwise might attract. But the statements on Gilbert's Web site either give rise to defamation claims or
they do not. Nonactionable communications do not expose the speaker to liability merely because they
are likely to reach a greater number of recipients.
The Sponsored Links allegation does not save the cross-complaint from dismissal under section 425.16.
DISPOSITION
The judgment is reversed. The cause is remanded to the trial court with directions to grant Gilbert's
special motion to strike and to conduct further proceedings in accordance with section 425.16. Gilbert
shall recover her costs on appeal. (Cal. Rules of Court, rule 8.276(a)(2).) (CERTIFIED FOR
PUBLICATION.)
We concur: ROBIE, Acting P.J., and CANTIL-SAKAUYE, J.
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