Dual Diagnosis Treatment Center, Inc. v. Buschel

Filed 12/20/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

DUAL DIAGNOSIS TREATMENT

CENTER, INC.,

G053046

Plaintiff and Respondent,

(Super. Ct. No. 30-2015-00810428)

v.

OPINION

LEONARD BUSCHEL et al.,

Defendants and Appellants.

Appeal from an order of the Superior Court of Orange County, Ronald L.

Bauer, Judge. Affirmed.

Law Offices of M. David Meagher and M. David Meagher for Defendants

and Appellants.

Carlson & Jay Jayakumar, Jehan N. Jayakumar and Jasmine Dos Santos for

Plaintiff and Respondent.

* * *

This case arises out of the republication and electronic distribution of an

outdated newspaper article concerning Dual Diagnosis Treatment Center, Inc. dba

Sovereign Health of California (Sovereign) and one of the treatment centers it operates.

Following the republication, which occurred in an electronic newsletter edited and

published by Leonard Buschel, Sovereign sued Buschel and a nonprofit he founded,

Writers in Treatment, Inc. (Writers), seeking injunctive relief and damages for alleged

harm caused by supposed false statements made in the newsletter. Buschel and Writers

filed a special motion to strike the complaint under Code of Civil Procedure section

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425.16, the anti-SLAPP statute. The trial court denied the motion; Buschel and Writers

appeal. As detailed below, we affirm the trial court’s order denying the motion because

Sovereign’s claims do not arise from activity protected by the anti-SLAPP statute.

I

FACTS

Sovereign is a corporation that “offers specialized mental health, substance

abuse, and dual diagnosis disorder treatment” in eight treatment centers located in four

different states. One of the treatment centers is situated in the City of San Clemente,

which is also Sovereign’s principal place of business.

Buschel, a former Certified Substance Abuse Counselor, is the editor and

publisher of a weekly electronic newsletter related to alcohol and drug treatment and

recovery entitled “Addiction/Recovery eBulletin.” The eBulletin is distributed via e-mail

to approximately 22,000 readers, including alcohol and drug treatment professionals and

others interested in information concerning the industry and community. It is also made

available on a Web site where both new and archived editions of the eBulletin are

maintained.

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All subsequent statutory references are to the Code of Civil Procedure.

2

In his role as the editor and publisher of the eBulletin, Buschel identifies

third party articles that he believes may be of interest to readers and develops a brief

“excerpt” of each article, which is then included in the eBulletin along with an electronic

link to the third party Web site where the article may be found.

On August 25, 2015, Buschel published an edition of the eBulletin. Among

the linked articles was one from the Orange County Register concerning Sovereign’s

Chief Executive Officer (CEO), an article which Buschel personally reviewed prior to

making the decision to include it in the eBulletin. The Orange County Register article,

originally dated August 2010 and “updated” in August 2013, was titled “Man stripped of

UK medical license runs local rehab.”

The electronic link to the Orange County Register article in the eBulletin

followed a short paragraph that read in full as follows: “A British doctor who was

stripped of his medical license for conducting unethical drug trials on mentally ill patients

is now running an unlicensed San Clemente rehabilitation facility that focuses on the

mentally ill. There has begun an investigation of Sovereign Health of California, over its

lack of license to run a residential treatment program. The British agency that licenses

doctors struck Tonmoy Sharma off the medical register for lying and conducting

unethical drug studies.”

Not long after the August 25th eBulletin was published, Sovereign’s Senior

Director for Strategic Development e-mailed Buschel requesting that they speak

“immediately” to “avoid further action” by Sovereign. The e-mail expressed concern that

the eBulletin could do “substantial harm” to Sovereign given its distribution “to

thousands of people.” Buschel called the Director, and following a series of subsequent

e-mail communications, Buschel published a “Retraction and Apology” eBulletin

containing language provided by Sovereign.

Approximately three weeks later, Sovereign sued Buschel and Writers. The

complaint alleges causes of action for libel, libel per se, false light and negligence, each

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focused on the language in the August 25th eBulletin concerning the licensing status of

Sovereign’s San Clemente facility.

Pursuant to section 425.16, Buschel and Writers moved to strike the

complaint on the grounds that it was a “strategic litigation against public participation”

— a “SLAPP” action. They asserted that the eBulletin’s statements about Sovereign

were made in connection with matters of public interest, rendering section 425.16

applicable, and that Sovereign could not show a probability of succeeding on its claims,

primarily due to a claimed federal statutory immunity. Sovereign opposed the motion,

contending that section 425.16 does not apply because the statements at issue are not of

“public interest.” It further contended that even if the statements were deemed to be of

public interest, no immunities apply and Sovereign established the requisite probability of

prevailing on its claims.

Following a hearing, the trial court issued a minute order denying Buschel

and Writers’ motion. The order did not set forth the reason(s) for the denial. Buschel

and Writers’ timely appealed.

II

DISCUSSION

“The anti-SLAPP statute . . . provides a procedure for weeding out, at an

early stage, meritless claims arising from protected activity. Resolution of an anti-

SLAPP motion involves two steps. First, the defendant must establish that the challenged

claim arises from activity protected by section 425.16. [Citation.] If the defendant

makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of

the claim by establishing a probability of success. [The Supreme Court has] described

this second step as a ‘summary-judgment-like procedure.’ [Citation.] The court does not

weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the

plaintiff has stated a legally sufficient claim and made a prima facie factual showing

sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and

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evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a

matter of law. [Citation.] ‘[C]laims with the requisite minimal merit may proceed.’

[Citation.]” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384-385, fn. omitted.)

“‘An order denying a special motion to strike under section 425.16 is

immediately appealable. [Citations.] Our review is de novo; we engage in the same two-

step process as the trial court to determine if the parties have satisfied their respective

burdens. [Citations.] If the defendant fails to show that the lawsuit arises from protected

activity, we affirm the trial court’s ruling and need not address the merits of the case

under the second prong of the statute.’” (Talega Maintenance Corp. v. Standard Pacific

Corp. (2014) 225 Cal.App.4th 722, 728 (Talega).)

As to the first step of the analysis, the sole inquiry is whether Sovereign’s

claims arise from protected speech or petitioning activity in connection with a public

issue. (Talega, supra, 225 Cal.App.4th at pp. 727-728.) The focus is on what conduct is

being challenged, not “‘“whether the conduct is actionable.”’” (Ibid.) The anti-SLAPP

statute enumerates four categories of activity that may qualify as an “‘act in furtherance

of,’” including: “(1) any written or oral statement or writing made before a legislative,

executive, or judicial proceeding, or any other official proceeding authorized by law, (2)

any written or oral statement or writing made in connection with an issue under

consideration or review by a legislative, executive, or judicial body, or any other official

proceeding authorized by law, (3) any written or oral statement or writing made in a place

open to the public or a public forum in connection with an issue of public interest, or (4)

any other conduct in furtherance of the exercise of the constitutional right of petition or

the constitutional right of free speech in connection with a public issue or an issue of

public interest.” (§ 425.16, subd. (e).)

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Buschel maintains, as he did in the trial court, that section 425.16,

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subdivisions (e)(3) and (e)(4) apply. He argues that the statements at issue were made in

a “public forum” — in Internet communications and on the eBulletin Web site — and

that they were in connection with a “public issue” or an “issue of public interest.”

Buschel supports the latter primarily by (1) noting that the eBulletin is distributed to

approximately 22,000 addiction treatment professionals, and (2) stating that such persons

“care about drug and alcohol rehabilitation services provided by organizations such as

[Sovereign]” and the operations of their facilities.

Sovereign does not challenge the “public forum” aspect, but instead focuses

its contentions on the “public issue” component. It asserts that Buschel fails to connect

the claimed interest in the care and treatment of individuals with substance abuse

addictions, an interest which Sovereign characterizes as “broad and amorphous,” to the

specific statements upon which Sovereign’s complaint is based.

For the reasons explained below, we conclude that Buschel has not met his

burden in demonstrating an “issue of public interest” under the statute.

We are mindful that the definition of “public interest” for purposes of the

anti-SLAPP statute is to be, and has been, “broadly construed to include not only

governmental matters, but also private conduct that impacts a broad segment of society

and/or that affects a community in a manner similar to that of a governmental entity.”

(Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479 (Damon).) A

prime example is activity that involves a large, powerful private organization which may

impact the lives of many individuals. (Talega, supra, 225 Cal.App.4th at p. 734.) Other

examples include situations in which the subject of the statement or activity was a person

or entity in the public eye, the statement or activity involved conduct that could affect

2

Buschel does not assert that section 425.16, subdivisions (e)(1) and (e)(2) apply, and we

find no evidence demonstrating a relevant legislative, executive, judicial or other

proceeding.

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large numbers of people beyond the direct participants, or the statement or activity

involved a topic of “widespread, public interest.” (Rivero v. American Federation of

State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 924

(Rivero).)

“‘[I]n cases where the issue is not of interest to the public at large, but

rather to a limited, but definable portion of the public (a private group, organization, or

community), the constitutionally protected activity must, at a minimum, occur in the

context of an ongoing controversy, dispute or discussion, such that it warrants protection

by a statute that embodies the public policy of encouraging participation in matters of

public significance.’” (Talega, supra, 225 Cal.App.4th at p. 734, quoting Du Charme v.

International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 119 (Du

Charme).)

Critical to our “public interest” determination is identification of the

specific speech that is the subject of Sovereign’s claims. (See Commonwealth Energy

Corp. v. Investor Data Exchange, Inc. (2003) 110 Cal.App.4th 26, 34 (Commonwealth);

Consumer Justice Center v. Trimedica International, Inc. (2003) 107 Cal.App.4th 595.)

A close review of the complaint reveals that each claim is based on the same two

statements allegedly included in the August 25th eBulletin: (1) that Sovereign was “now

running an unlicensed San Clemente rehabilitation facility[;]” and (2) that “[t]here has

begun an investigation of Sovereign Health of California, over its lack of license to run a

residential treatment program.” Although the Orange County Register article linked to

by the eBulletin largely concerned the foreign medical license status of Sovereign’s CEO,

a matter touched on in the eBulletin as well, none of Sovereign’s claims are directed at

3

any statements concerning that topic.

3

Sovereign makes such a representation in its briefing in this appeal.

7

The licensing status of a single rehabilitation facility is not of “widespread,

public interest.” There is no showing that the San Clemente rehabilitation facility

impacts, or has the potential to impact, a broad segment of society, or that the statements

were part of some larger goal to provide consumer protection information. (See Du

Charme, supra, 110 Cal.App.4th at p. 117 [widespread public interest involves private

conduct that “‘impacts a broad segment of society’”]; cf. Wong v. Jing (2010) 189

Cal.App.4th 1354, 1367 [Web site posting was of public interest because it dealt with

more general issue of effects of dentist use of certain products, not just a highly critical

opinion of a particular dentist]; Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 23-24

[statements contributing to general debate of “pros and cons of undergoing cosmetic

surgery” were of widespread public interest]; Integrated Healthcare Holdings, Inc. v.

Fitzgibbons (2006) 140 Cal.App.4th 515, 523-524 [financial viability of owner and

operator of four Orange County hospitals was of widespread public interest because it

was large and powerful enough to impact healthcare needs of county’s residents].)

We nevertheless recognize that the statements might be of interest to a

limited group, such as potential clients, neighboring residents and businesses, and/or

certain industry professionals. (See Talega, supra, 225 Cal.App.4th at p. 734 [financial

responsibility for repair of residential community’s trails not of widespread public

interest]; Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90 [accusations

that company unlawfully dumped toxic chemicals not of widespread public interest

because statements were not about pollution or potential public health and safety issues in

general], overruled on other grounds by Baral, supra, 1 Cal.5th 376.) Thus, in order to

trigger section 425.16, the speech must have occurred “in the context of an ongoing

controversy, dispute or discussion.” (Talega, supra, 225 Cal.App.4th at p. 734.)

While it appears that about one week before the August 25th eBulletin was

disseminated, the City of San Clemente filed a lawsuit against Sovereign and others

concerning Sovereign’s San Clemente rehabilitation facility, that lawsuit alleges that the

8

facility is a public nuisance due to purported “smoking, loitering and unsafe driving” that

occurs at the site. There are no allegations concerning the licensing status of the facility,

and Buschel does not point us to any other evidence that suggests such an ongoing

discussion, dispute or controversy. (Compare Kurwa v. Harrington, Foxx, Dubrow &

Canter, LLP (2007) 146 Cal.App.4th 841, 848 [comments concerning specific doctor and

HMO contract were not of public interest because no ongoing dispute or discussion];

Cabrera v. Alam (2011) 197 Cal.App.4th 1077, 1091 [statement that past homeowners

association president stole money from and defrauded the association was of public

interest given that it was made during an election campaign]; and Damon, supra, 85

Cal.App.4th at pp. 479-480 [political statements made during time 3,000 person gated

residential community was making decision concerning future homeowners association

management were matters of public interest].)

In asserting that there is an identifiable public interest, namely, “addiction

treatment” and “how addiction treatment facilities operate,” Buschel falls into the trap

referred to in Commonwealth as the “synecdoche theory of public issue in the anti-

SLAPP statute.” (Commonwealth, supra, 110 Cal.App.4th at p. 34.) Almost any

statement, no matter how specific, can be construed to relate to some broader topic. But,

“[t]he part is not synonymous with the greater whole.” (Ibid.) The eBulletin statements

about Sovereign’s San Clemente rehabilitation facility were simply comments about the

purported license status of that particular facility. They did not concern treatment and

rehabilitation facilities, in general, or even all of Sovereign’s facilities. (Cf. Ibid.

[“Selling an herbal breast enlargement product is not a disquisition on alternative

medicine. Lying about the supervisor of eight union workers is not singing one of those

old Pete Seeger union songs (e.g., ‘There Once Was a Union Maid’). And, in the case

before us, hawking an investigatory service is not an economics lecture on the importance

of information for efficient markets”].)

9

Given the focused nature of the statements at issue in this case, Buschel’s

reliance on M.G. v. Time Warner, Inc. (2001) 89 Cal.App.4th 623, is misplaced. There,

the plaintiffs’ claims arose from a Sports Illustrated cover story and HBO television

program about incidents of child molestation in youth sports, both of which used a

specific team to illustrate the issue. (Id. at pp. 626-627.) Some of the players and

coaches that were part of the team sued, alleging invasion of privacy and infliction of

emotional distress. (Ibid.) In concluding a “public issue” was involved for purposes of

the anti-SLAPP statute, the appellate court emphasized that the article and program

concerned the broader topic of child molestation in youth sports. (M.G. v. Time Warner,

Inc., supra, at p. 629.) It was not simply focused on whether particular children were

molested. (Ibid.) Here, we have the opposite; focus on the particular and not on the

broader topic. (See Rivero, supra, 105 Cal.App.4th at pp. 923-924 [distinguishing M.G.

based on fact that documents were not tied to addressing a larger issue, but rather were

focused on a specific employment situation involving eight employees].)

Equally inapposite is Global Telemedia Intern., Inc. v. Doe 1 (C.D. Cal.

2001) 132 F.Supp.2d 1261, 1265, a case which concerned postings made in an Internet

Web site’s “chat-room” about a publicly traded company with 18,000 investors that had

the potential for affecting market sectors (or the markets as a whole) and that had injected

itself into the public arena via numerous press releases. There are no similar facts in this

case.

Having concluded that Buschel failed to meet his burden in the first step of

the anti-SLAPP analysis, we need not reach the question of whether Sovereign met the

second step burden of establishing a probability of success on the merits of its claims,

including the related evidentiary dispute. (§ 425.16, subd. (b)(1); see Talega, supra, 225

Cal.App.4th at p. 728.)

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III

DISPOSITION

The order is affirmed. Respondent is entitled to its costs on appeal.

MOORE, J.

WE CONCUR:

O’LEARY, P. J.

ARONSON, J.

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