Creekside Endodontics v. Kathryn Sullivan

     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                 SUMMARY
                                                          December 22, 2022

                               

No. 21CA1615, Creekside v Sullivan — Torts — Defamation;
Courts and Court Procedure — Regulation of Actions and
Proceedings — Action Involving Exercise of Constitutional
Rights — Anti-SLAPP — Special Motion to Dismiss

     In this anti-SLAPP case, a division of the court of appeals

applies the heightened evidentiary burden articulated in L.S.S. v.

S.A.P., 

, ¶ 41. In so doing, the division concludes

that because Plaintiffs failed to produce clear and convincing

evidence that Defendant’s communications were made with actual

malice, and since the remainder of her communications were

nonactionable as a matter of law, the district court erred in denying

Defendant’s special motion to dismiss filed pursuant to section 13-

21-1101(3)(a), C.R.S. 2022. We further determine that, on remand,
the district court must enter an award of attorney fees and costs for

Defendant consistent with section 13-21-1101(4)(a), C.R.S. 2022.
COLORADO COURT OF APPEALS                                       

Court of Appeals No. 21CA1615
Saguache County District Court No. 20CV30024
Honorable Crista Newmyer-Olsen, Judge


Creekside Endodontics, LLC, and Andrew Stubbs,

Plaintiffs-Appellees,

v.

Kathryn Sullivan,

Defendant-Appellant.


                        JUDGMENT REVERSED AND CASE
                         REMANDED WITH DIRECTIONS

                                  Division III
                            Opinion by JUDGE FOX
                               Tow, J., concurs
                           Yun, J., specially concurs

                         Announced December 22, 2022


Gelman & Norberg LLC, Weston Cole, Greenwood Village, Colorado, for
Plaintiffs-Appellees

Ballard Spahr LLP, Ashley I. Kissinger, Denver, Colorado; Ballard Spahr LLP,
Lauren Russell, Washington, D.C., for Defendant-Appellant
¶1    Defendant, Kathryn Sullivan, appeals the district court’s

 denial of her special motion to dismiss defamation claims brought

 against her by Creekside Endodontics, LLC, and Andrew Stubbs

 (collectively, Plaintiffs). Sullivan sought dismissal under Colorado’s

 recently enacted anti-SLAPP statute.1 See § 13-20-1101(3)(a),

 C.R.S. 2022.

¶2    Because we conclude there is not a reasonable likelihood that

 Plaintiffs will prevail on their defamation claims, we reverse and

 remand with directions to dismiss the complaint and award

 Sullivan attorney fees and costs pursuant to section 13-20-

 1101(4)(a).

                       I.   Factual Background

¶3    Dr. Stubbs, a licensed dentist, is the owner and sole member

 of Creekside Endodontics. Sullivan was his patient. After Dr.

 Stubbs performed root canal therapy on Sullivan, she was

 dissatisfied with the procedures and publicly expressed her

 dissatisfaction.




 1“SLAPP” is an acronym for “strategic lawsuits against public
 participation.”
                                   1
¶4      In early July 2019, Sullivan came to Creekside Endodontics

 complaining of severe pain in four teeth — specifically, teeth

 numbers 3, 5, 6, and 13. After examining her, Dr. Stubbs

 determined that the four affected teeth required treatment and that

 a metal file was embedded in tooth number 3 (apparently from

 shoddy dental work performed by another dentist). Dr. Stubbs

 advised Sullivan that she had three options: (1) do nothing, (2)

 undergo root canal therapy, or (3) have the teeth extracted.

 Sullivan elected to proceed with root canal therapy.

¶5      Over the span of several appointments between July 22 and

 August 5, Dr. Stubbs completed root canal therapy on the four

 teeth. While treating Sullivan, Dr. Stubbs discovered that teeth

 numbers 3 and 13 were fractured. He informed her of this

 discovery and explained that this reduced the likelihood of a

 successful treatment for the affected teeth; she chose to proceed

 with the surgery.2

¶6      Within days, Sullivan emailed Dr. Stubbs complaining of

 persistent pain in tooth number 3. Dr. Stubbs prescribed pain



 2   Sullivan claims she was only informed that tooth 3 was fractured.
                                    2
 medication, steroids, and antibiotics to mitigate the pain. Soon

 after, Sullivan posted a positive review on Yelp of Creekside

 Endodontics and Dr. Stubbs.

¶7    But Sullivan’s pain soon returned. Acting as her own

 advocate, Sullivan began conducting independent research on root

 canal therapy. As part of this research, she emailed Dr. Franklin

 Pineda on August 22 with copies of the x-rays Dr. Stubbs had taken

 and described experiencing severe pain.3 Dr. Pineda concluded that

 (1) dental filling material extended beyond the roots (i.e., the tip) of

 teeth numbers 5, 6, and 13; and (2) the roots of teeth numbers 5

 and 13 were in close proximity to one of her sinuses. He opined

 that the overfilling — especially in the two teeth close to the sinus

 — could be causing her pain.

¶8    Armed with this information, Sullivan contacted Dr. Stubbs,

 told him that she was experiencing intense pain, and asked whether

 an “overfilling” of her root canals could be the cause. During the

 ensuing email exchange — from August 23 through September 4 —


 3Dr. Pineda is an endodontist educated and licensed in Mexico.
 He held a postgraduate teaching position in endodontics at the
 University of Washington and is an affiliate member of the
 American Endodontic Association.
                                     3
  Dr. Stubbs persistently denied that overfilling occurred and stated

  that, even if the canals were overfilled, it was not the cause of her

  pain. He repeatedly offered to re-examine her.

¶9     Meanwhile, Sullivan continued her research. To that end, she

  posted a comment on Denver Dental Peeps (a dental-focused

  Facebook group) on August 25, in which she claimed that her

  “sister” had undergone root canal therapy but was still in severe

  pain. She included the x-rays Dr. Stubbs had taken and floated the

  possibility that the pain was caused by overfilling of the canals.

  Several posts disagreed with this diagnosis, commenting that the

  root canals looked good, the fillings within normal limits, and the

  pain may be attributable to underlying fractures in the teeth. With

  the exception of one commenter (who identified herself as a dental

  assistant), the commentators did not indicate their credentials.

¶ 10   Owing to her continued pain, Sullivan returned to Dr. Stubbs’

  office for a follow-up examination on September 5. Dr. Stubbs

  performed cone-beam computed tomography (CBCT) scans —

  essentially a three-dimensional x-ray — on each tooth he had

  treated. After reviewing the images, Dr. Stubbs discovered that

  teeth numbers 5 and 6 were overfilled, and that gutta percha (a

                                     4
  thermoplastic filling that is heated and compressed into the tooth’s

  canal) extended one millimeter beyond the tip of tooth number 13.

  He also learned that he had missed a canal on tooth number 3. Dr.

  Stubbs uploaded these CBCT images onto a CD and gave it to

  Sullivan.

¶ 11       Although Dr. Stubbs filled the remaining canal on tooth

  number 3, Sullivan’s pain persisted. As she had in late August,

  Sullivan continued to ask Dr. Stubbs whether the overfilling was

  the cause of her pain — a theory that he persistently rejected.

  Instead, Dr. Stubbs advised her to see a neurologist.

¶ 12       On September 19, a week after treating tooth number 3, Dr.

  Stubbs terminated his doctor-patient relationship with Sullivan —

  citing her “adversarial” behavior — and denied her request for a full

  refund. In response, Sullivan said, “[Y]ou want to escape

  community accountability. Okay, but it is your reputation on the

  line.”

¶ 13       In early October, Sullivan temporarily relocated to Florida to

  live with family. On October 15, 2019, she saw a dentist in Florida,




                                        5
  Dr. Carlo Litano.4 Dr. Litano took new CBCT scans because he was

  unable to view the ones on Dr. Stubbs’ CD. Based on his analysis

  of these images, Dr. Litano concluded that teeth numbers 5, 6, and

  13 were overfilled, that number 13 had material extruding near the

  sinus, and that there were multiple infections near these locations.

¶ 14   After leaving Dr. Litano’s office, Sullivan went directly to

  another dentist, Dr. Paul Rodeghero.5 She showed Dr. Rodeghero

  her images and he agreed that, at a minimum, tooth number 5

  needed to be removed. Sullivan scheduled to have that tooth

  extracted on October 25.

¶ 15   The next day, she emailed Dr. Stubbs screenshots of the scans

  Dr. Litano had taken and explained that her in-person

  consultations with other dentists proved that the overfilling was

  worse than she originally thought. Dr. Stubbs reiterated his

  disagreement that her pain was caused by overfilling.




  4 Dr. Litano is a dentist educated and licensed in Florida.
  According to his declaration, he focuses his practice on “biological
  and integrative dentistry.”
  5 Although Dr. Rodeghero did not provide a declaration reciting his

  professional credentials, the record shows he is a licensed dentist.
                                     6
¶ 16      On October 17, 2019, Sullivan posted a one-star review on

  Creekside Endodontics’ Yelp page accompanied by the following

  text:

               On the surface, it is a very professional office
               staff. Unfortunately, the work done is sub par
               and below the standard of care. Dr. Stubbs
               overfilled 3 out of 4 of my root canals causing
               great pain and the need for surgery or surgical
               extraction. He has refused all accountability
               and tried to send me to a neurologist rather
               [than] rectify the damage. Overfilling is in my
               sinus and has caused me pain for nearly three
               months now. When I confronted Dr. Stubbs
               about it, he fired me from the practice.
               Radiographic evidence attached. Overfilling
               has been confirmed by several endodontists
               and dentists and is very obvious even to a lay
               persons [sic] eyes.

  Sullivan attached screenshots of the images from Dr. Litano and Dr.

  Stubbs.

¶ 17      To Sullivan’s disappointment, her post was soon categorized

  as a “not currently recommended” review, and thus not readily

  viewable by Yelp users. Undeterred, she tried again, posting

  another one-star review about Dr. Stubbs on October 21, 2019,

  (without reference to Creekside Endodontics):

               Root canals significantly overfilled causing
               sinus perforation and pain that effects [sic]
               teeth/nose/sinus/eye from the moment they

                                      7
            were obturated. Dr. Stubbs refuses to rectify
            or be accountable for the harm he has caused!

            I have uploaded radiographic evidence and
            photos.

  Sullivan attached screenshots of Dr. Litano’s images with the

  review.

¶ 18   Because she was still in pain, Sullivan proceeded to have Dr.

  Rodeghero remove tooth number 5 on October 25, 2019. After

  surgery, Dr. Rodeghero provided physical confirmation of Sullivan’s

  theory that excess sealer was coming out of tooth number 5, that

  the tooth was infected, and that tooth number 6 was also overfilled

  (an observation made possible by virtue of it being next to removed

  tooth number 5).

¶ 19   Shortly after her appointment with Dr. Rodeghero, Sullivan

  posted her third and final one-star review (this time on Google) of

  Creekside Endodontics:

            3 of the 4 root canals Dr. Stubbs did are
            significantly overfilled causing major pain in
            the teeth/ sinus/ eyes/ neck/shoulders from
            the moment they were obturated. I suffered
            for over a month before another endodontist
            alerted me that they were overfilled. Dr.
            Stubbs ignored my pain and then completely
            denied that overfilling causes pain. Any
            foreign material in the body CAUSES PAIN!!

                                    8
            He tried to gaslight me to escape
            accountability for the harm he did! He also
            actively tried to hide the overfilled when taking
            a CT scan and gave me blank CDs. I took a CT
            at TWO other offices and the overfills are even
            worse [than] I imagined. I have had one of the
            three teeth extracted already and there is still
            gutta percha and sealer left in the bone
            requiring additional surgical removal. The
            tooth had gutta percha sticking out of it and
            into the gum which caused a massive infection
            leading to bone being completely destroyed on
            one side. I have two more teeth to extract
            because of his damage. These are not
            straightforward extractions due to the foreign
            material he left. One of the teeth has gutta
            percha in the sinus.

            SHAME ON YOU FOR NOT LISTENING TO ME
            AND DENYING MY PAIN, DR STUBBS! YOU
            HAVE CAUSED MAJOR DAMAGE AND HAVE
            DONE NOTHING TO RECTIFY IT!

¶ 20   Plaintiffs sued Sullivan for libel per se and trade and product

  disparagement based on the allegedly defamatory posts. Sullivan

  filed a special motion to dismiss, relying on section 13-20-

  1101(3)(a), which the court denied.6




  6 This was the third special motion to dismiss that Sullivan filed in
  this lawsuit. She filed the first pro se, the second after obtaining
  counsel (who amended the first), and the third after the district
  court denied her second motion and granted Plaintiffs leave to
  amend their complaint.
                                    9
              II.   Applicable Law and Standard of Review

¶ 21   Colorado’s anti-SLAPP statute seeks to minimize the risk of

  nonmeritorious lawsuits being used to silence another based on

  their exercise of First Amendment rights. § 13-20-1101(1)(a); L.S.S.

  v. S.A.P., 

, ¶¶ 14-17. It thus aims to balance the

  “constitutional rights of persons to petition, speak freely, associate

  freely, and otherwise participate in government” with the “rights of

  persons to file meritorious lawsuits for demonstrable injury.” § 13-

  20-1101(1)(b); Salazar v. Pub. Tr. Inst., 

, ¶¶ 11-12.

¶ 22   To that end, the statute creates a procedural mechanism that

  allows a district court to assess a lawsuit at its early stages and

  determine whether it is nonmeritorious (the idea being to weed out

  lawsuits that are not being used to address a legal injury, but

  instead seek to dissuade another from exercising their First

  Amendment rights). See Andrew L. Roth, Comment, Upping the

  Ante: Rethinking Anti-SLAPP Laws in the Age of the Internet, 

, 745-48 (2016) (describing the theoretical

  underpinnings of SLAPP lawsuits).

¶ 23   As another division of this court cogently described,



                                    10
               The statute allows a person (usually a
               defendant) to file a special motion to dismiss
               “[a] cause of action against a person arising
               from any act of that person in furtherance of
               the person’s right of petition or free speech
               under the United States constitution or the
               state constitution in connection with a public
               issue.” § 13-20-1101(3)(a). The trial court
               then “consider[s] the pleadings and supporting
               and opposing affidavits” to determine whether
               “the plaintiff has established that there is a
               reasonable likelihood that the plaintiff will
               prevail on the claim.” § 13-20-1101(3)(a)-(b).

  L.S.S., ¶ 18 (emphasis added). If the court determines there is not a

  reasonable likelihood that the plaintiff will prevail on her claim, it

  must grant the motion and award the defendant attorney fees and

  costs.7 § 13-20-1101(3)(a), (4)(a).

¶ 24      We review de novo a district court’s ruling on a special motion

  to dismiss to determine whether the plaintiff has established a

  “reasonable likelihood” that she will prevail on her claim. Salazar,

  ¶ 21.




  7There is one exception to this rule: a prevailing party is not
  entitled to attorney fees and costs “if that cause of action is brought
  pursuant to part 4 of article 6 of title 24 or the ‘Colorado Open
  Records Act’, part 2 of article 72 of title 24.” § 13-20-1101(4)(b),
  C.R.S. 2022.
                                      11
¶ 25   This entails a two-step process. First, we consider “whether

  the defendant has made a threshold showing that the conduct

  underlying the plaintiff’s claim falls within the scope of the anti-

  SLAPP statute — that is, that the claim arises from an act ‘in

  furtherance of the [defendant’s] right of petition or free speech . . .

  in connection with a public issue.’” L.S.S., ¶ 21 (quoting § 13-20-

  1101(3)(a)). If so, the court evaluates whether the plaintiff has

  established a “reasonable likelihood [of] prevail[ing] on the claim.”

  Id. at ¶ 22 (quoting § 13-20-1101(3)(a)-(b)).

¶ 26   For this second step, we review “the pleadings and the

  evidence to determine ‘whether the plaintiff has stated a legally

  sufficient claim and made a prima facie factual showing sufficient to

  sustain a favorable judgment.’” Id. at ¶ 23 (quoting Baral v. Schnitt,

  

 (Cal. 2016)). In so doing, “[t]he court does not

  weigh evidence or resolve conflicting factual claims” but simply

  “accepts the plaintiff’s evidence as true, and evaluates the

  defendant’s showing only to determine if it defeats the plaintiff’s

  claim as a matter of law.” 

 at ¶¶ 23-24 (quoting Baral, 

).



                                     12
                             III.   Discussion

                    A.   Step One: Protected Activity

¶ 27   The district court concluded that Sullivan’s reviews were made

  “in connection with a public issue” and are therefore subject to

  section 13-20-1101(3)(a). This determination matters because if

  Sullivan’s communications were made in connection with a public

  issue, then Plaintiffs’ must prove, at trial, that she made the

  statements with actual malice (and, as we explain below, establish a

  reasonable likelihood that they will be able do so at the special

  motion to dismiss stage). See L.S.S., ¶¶ 36-37.

¶ 28   Plaintiffs initially argued that Sullivan’s statements related to

  a matter of “purely private concern” and were thus outside the

  scope of the anti-SLAPP statute. But they did not submit argument

  on this issue in their appellate briefs. And while their counsel

  asserted during oral argument that the statements were a matter of

  private concern, we will not consider this contention because of

  their failure to develop this argument in their briefs. See Barnett v.

  Elite Props. of Am., Inc., 

 (Colo. App. 2010) (“We will

  not consider a bald legal proposition without argument or

  development. Counsel must inform the court both as to the specific

                                     13
  errors asserted and the grounds, supporting facts, and authorities

  to support their contention.”) (citation omitted); see also Galvan v.

  People, 

 (discussing party presentation principle).

¶ 29      We therefore assume, without deciding, that Sullivan’s reviews

  were made “in connection with a public issue.” § 13-20-1101(3)(a);

  see L.S.S., ¶ 28 (declining to decide whether an act was made “in

  connection with a public issue” because the parties agreed that it

  was).

                    B.   Step Two: Reasonable Likelihood

¶ 30      The parties disagree over the meaning of “reasonable

  likelihood” in this specific context — namely, where the defamatory

  statements involve a matter of public concern. Plaintiffs urge us to

  adopt the district court’s reasoning; under that rubric, we must

  deny a special motion to dismiss if Plaintiffs’ claim has “‘minimal

  merit’ and . . . there is a ‘reasonable likelihood’ they will prevail.”

  Sullivan, by contrast, argues that Plaintiffs must show, by clear and

  convincing evidence, that they have a reasonable likelihood of

  prevailing at trial.

¶ 31      Another division of this court addressed this precise issue in

  L.S.S. Drawing on California cases interpreting a substantively

                                      14
  identical anti-SLAPP statute, Colorado cases applying the clear and

  convincing standard at summary judgment, and a balancing of the

  interests implicated by the statute, the division concluded that the

  heightened standard applied. L.S.S., ¶¶ 42-44. Accordingly, it held

  that

              in order to withstand a special motion to
              dismiss where a showing of actual malice will
              be required at trial, a plaintiff must establish a
              probability that they will be able to produce
              clear and convincing evidence of actual malice
              at trial.

  Id. at ¶ 41.

¶ 32     We agree with the reasoning and holding of the L.S.S. division

  and therefore adopt its reasoning.

¶ 33     With that burden in mind, we now analyze whether Plaintiffs

  established a probability that they will be able to produce clear and

  convincing evidence of actual malice at trial. We conclude that

  Plaintiffs failed to meet this burden with respect to Sullivan’s

  actionable statements, and we further determine that the remainder

  of her statements are not actionable.




                                      15
                  1.    Defamation: General Principles

¶ 34   Defamation is a communication that holds an individual up to

  contempt or ridicule, causing them injury or damage. Keohane v.

  Stewart, 

 (Colo. 1994). The elements are:

            (1) a defamatory statement concerning
            another; (2) published to a third party; (3) with
            fault amounting to at least negligence on the
            part of the publisher; and (4) either
            actionability of the statement irrespective of
            special damages or the existence of special
            damages to the plaintiff caused by the
            publication.

  Lawson v. Stow, 

 (quoting Williams v. Dist. Ct.,

  

, 911 n.4 (Colo. 1993)).

¶ 35   The party claiming defamation, however, is subject to a

  heightened burden of proof when the challenged statement relates

  to a matter of “public concern.” Id. at ¶ 18; see also Lewis v.

  McGraw-Hill Broad. Co., 

 (Colo. App. 1992) (“[A]

  defamatory statement addresses a matter of public concern

  whenever it embraces an issue about which information is needed

  or is appropriate.”). As relevant here, the plaintiff must prove, by

  clear and convincing evidence, that the speaker made the

  statements with “actual malice.” Lawson, ¶ 18.


                                    16
¶ 36   In contrast to the preponderance of evidence standard —

  which only requires proof that a fact is “more probable” than not,

  Page v. Clark, 

, 

 (1979)

  (quoting Charles T. McCormick, The Law of Evidence § 339 (2nd ed.

  1972)) — the clear and convincing standard requires proof that a

  fact is “highly probable and free from serious or substantial doubt.”

  Destination Maternity v. Burren, 

 (citation omitted).

¶ 37   A communication is made with actual malice if it is published

  with “actual knowledge that it was false” or “with reckless disregard

  for whether it was true.” L.S.S., ¶ 40. To be sure, it is rare for there

  to be evidence that the speaker knew their statement was false yet

  published it anyway. See, e.g., Burns v. McGraw-Hill Broad. Co.,

  

 (Colo. 1983) (where speaker in fact “knew”

  that the statements were false). Our inquiry therefore typically

  turns on whether the publisher made the statement with “reckless

  disregard.”

¶ 38   Thus, actual malice is proved by evidence that the publisher

  “entertained serious doubts as to the truth of the statement or

  acted with a high degree of awareness of its probable falsity.” Fry v.

  Lee, 

. Unless it is “grossly inadequate,” an

                                    17
  investigation by a layperson that forms the basis of a defamatory

  statement is insufficient to show actual malice. Reddick v. Craig,

  

 (Colo. App. 1985). Similarly, a speaker’s “failure

  to corroborate information received from [an otherwise] reliable

  source” — which later turns out to be incorrect — does not

  establish actual malice. Lewis, 

. Nor does

  evidence that the defamed party simply denied the veracity of the

  speaker’s statement show actual malice. Seible v. Denver Post

  Corp., 

 (Colo. App. 1989); accord DiLeo v.

  Koltnow, 

, 

 (1980)

  (concluding actual malice was not proved because the “defendants’

  sources were reliable, and a thorough independent investigation

  was conducted to substantiate the truthfulness of the statements”).

¶ 39   Although a speaker’s ill will toward the defamed party is not

  an element of actual malice, evidence of such bad motive “may

  serve as circumstantial evidence of actual malice ‘to the extent that

  it reflects on the subjective attitude of the publisher.’” L.S.S., ¶ 40

  (quoting Balla v. Hall, 

, 683 (Ct. App. 2021))

  (collecting cases on this point).



                                      18
                               2.    Analysis

¶ 40   We begin by observing that Sullivan’s reviews contain two

  types of statements: those that concern Dr. Stubbs’ alleged

  overfilling (e.g., he overfilled the canals, this caused her pain, etc.)

  and those that concern his reaction to her complaints (e.g., he

  ignored her pain, he “gaslighted” her, etc.). We first address the

  statements related to his dental work, before turning to those that

  concern his handling of Sullivan’s dissatisfaction with that work.

                 a.   Statements Related to Dental Work

¶ 41   Sullivan argued that she sincerely believed Dr. Stubbs

  overfilled three of the four teeth he treated and that the overfilling

  was the cause of her pain. As pertinent here, she supported her

  position with (1) declarations of Dr. Pineda and Dr. Litano, and her

  own declaration; (2) the patient notes Dr. Rodeghero took post-

  surgery; and (3) all email communication between herself and Dr.

  Stubbs.

¶ 42   Plaintiffs sought to prove actual malice with (1) Dr. Stubbs’

  attestation, (2) an affidavit of a dental assistant who was involved in

  Sullivan’s care, and (3) some of the same emails Sullivan provided.



                                      19
¶ 43   We conclude that Plaintiffs cannot prove actual malice. As Dr.

  Pineda, Dr. Litano, Dr. Rodeghero, and Dr. Stubbs himself

  observed, teeth numbers 5 and 6 were, in fact, overfilled, and gutta

  percha extended beyond the tip of tooth number 13. Whether

  Sullivan made the statements with actual malice thus hinges on

  whether she “entertained serious doubts” that this overfilling could

  be the cause of her pain. Fry, ¶ 21.

¶ 44   But three dentists told Sullivan the overfilling could be the

  cause of her pain, and she based her statements on these

  professional opinions. Plaintiffs argue that, because one dentist

  practices in Mexico and the other two practice nonmainstream

  forms of dentistry, their professional opinions are inherently

  unreliable. This argument fails because it does not explain why

  their opinions are unreliable — let alone that Sullivan had serious

  reason to doubt the accuracy of their diagnoses. See 

 And even

  if she was misguided in believing that overfilling was the cause of

  her pain, there is no evidence that she doubted the opinions of the

  dentists on whom she relied yet published the statements anyway.

  See Lewis, 

.



                                    20
¶ 45   Her disregard of contrary opinions on the Dental Peeps thread

  also does not show actual malice. The district court found that

  Sullivan’s rejection of these viewpoints and later concession that

  root canal therapy was an “inexact science” shows that she may

  have made the statements with a reckless disregard for their truth.

  This ignores that her consultation of the online thread was but one

  small part of a two-month-long investigation. And even if Sullivan

  incorrectly concluded that the overfilling caused her pain, it cannot

  be said that her investigation was “grossly inadequate.” Reddick,

  

. In the end, she chose to believe the opinions of

  three dentists — two of whom examined her in person — with

  credentials she trusted, rather than the Dental Peeps commenters

  who opined, based on screenshots of the images, that Dr. Stubbs’

  work appeared normal.

¶ 46   Similarly, Dr. Stubbs’ persistent disagreement that the

  overfilling caused her pain is insufficient to establish actual malice.

  Sullivan was not required to take Dr. Stubbs’ professional opinion

  as conclusive fact over those of three other dentists she consulted.

  His denial, in other words, is not evidence that she knew he was



                                    21
  probably correct yet proceeded regardless. See Seible, 

; DiLeo, 

, 

.

¶ 47   This case is quite unlike Harte-Hanks Communications, Inc. v.

  Connaughton, 

 (1989), in which the Court

  found actual malice after the speaker based its assertion on a

  highly biased source, ignored evidence refuting that source, and

  avoided talking to the only person who could corroborate that

  source. Here, by contrast, Sullivan engaged in a lengthy

  investigation, received conflicting viewpoints, and ultimately chose

  to believe one professional opinion over another.

¶ 48   It could be argued that Sullivan’s ill will toward Dr. Stubbs

  shows actual malice. After all, when Dr. Stubbs rejected her

  request for a refund, Sullivan responded, “[Y]ou want to escape

  community accountability. Okay, but it is your reputation on the

  line.” While this ominous assertion tends to show bad motive, it is

  not enough to establish a reasonable likelihood that Plaintiffs will

  be able to prove, by clear and convincing evidence, that Sullivan

  made the challenged statements with actual malice.




                                    22
¶ 49      All told, Plaintiffs did not show a reasonable likelihood that

  Sullivan made the statements related to Dr. Stubbs’ dental work

  with actual malice.

           b.    Statements Addressing Sullivan’s Dissatisfaction

¶ 50      In addition to saying that Dr. Stubbs overfilled her teeth,

  Sullivan also voiced various grievances about his response to her

  complaints.

¶ 51      Statements of “pure opinion” are nonactionable under

  defamation principles. Lawson, ¶¶ 18, 30. Thus, even if a

  statement could be characterized as an opinion, it is only actionable

  if “the underlying defamatory facts which provide a basis for the

  opinion are false and are not disclosed in the context of the [broader

  statement].” Burns, 

.

¶ 52      Sullivan’s varied complaints stemmed from her frustration

  with Dr. Stubbs’ refusal to accept her theory, his suggestion that

  she consult a neurologist, and his eventual termination of their

  doctor-patient relationship. Dr. Stubbs claims these statements

  baselessly imply that he was a callous provider who ignored her

  pain.



                                       23
¶ 53   Although these assertions plainly cast Dr. Stubbs in a negative

  light, they are nonactionable because the factual bases for them are

  included in the reviews. 

 These factual bases include (1) that

  other dentists told Sullivan her teeth were overfilled and causing

  her pain; (2) that he suggested she see a neurologist rather than

  provide further treatment of the subject teeth; (3) that she took two

  additional CBCT scans because the other dentists could not view

  the ones on Dr. Stubbs’ CD; (4) that he terminated their

  relationship; and (5) the images themselves. Because Sullivan

  provided the factual reasons for her opinion, her statements are

  protected by the First Amendment. See Seible, 

  (alleged defamatory statements nonactionable because factual

  bases for opinions accompanied statements).

                     IV.   Attorney Fees and Costs

¶ 54   Section 13-20-1101(4)(a) provides that “a prevailing defendant

  on a special motion to dismiss is entitled to recover the defendant’s

  attorney fees and costs.” Because we conclude that Plaintiffs did

  not have, as a matter of law, a reasonable likelihood of prevailing on




                                   24
  their defamation claims, Sullivan is entitled to recover attorney fees

  and costs.8

                            V.    Conclusion

¶ 55   For the reasons stated, we reverse the judgment of the district

  court denying Sullivan’s special motion to dismiss and remand with

  directions to dismiss the complaint and award Sullivan attorney

  fees and costs.

       JUDGE TOW concurs.

       JUDGE YUN specially concurs.




  8 Because Plaintiffs’ trade and product disparagement claim rises
  and falls with the defamation claim, it is also subject to dismissal.
  See Williams v. Cont’l Airlines, Inc., 

 (Colo. App.
  1996) (A plaintiff “may not avoid the strictures of defamation law by
  artfully pleading their defamation claims to sound in other areas of
  tort law.” (quoting Vackar v. Package Mach. Co., 

 (N.D. Cal. 1993))).
                                    25
       JUDGE YUN, specially concurring.

¶ 56   I respectfully concur in the judgment only.

¶ 57   The parties agree on appeal that Kathryn Sullivan’s Yelp and

  Google reviews were made “in connection with a public issue,”

  § 13-20-1101(3)(a), C.R.S. 2022. Based on this concession1 and the

  party presentation rule, I agree that the majority reached the

  correct result. See Galvan v. People, 

 (“Under our

  adversarial system of justice, we adhere to the party presentation

  principle, which relies on the parties to frame the issues to be

  decided and assigns to courts the role of neutral arbiters of the

  matters raised.”).

¶ 58   I write separately, however, because I am concerned that the

  majority opinion could be construed as an endorsement that Yelp or

  Google reviews discussing a business dispute between two private

  parties is a matter of public concern for purposes of the First

  Amendment. In my view, Sullivan’s online reviews describing a




  1 Although the plaintiffs disagree as to whether the actual malice
  standard applies at the special motion to dismiss stage,
  § 13-20-1101, C.R.S. 2022, they appear to concede in their briefing
  that the standard would apply at trial.
                                    26
  dispute with a dentist about her root canal therapy do not rise to a

  matter of public concern.

¶ 59   At common law, the tort of defamation exists to compensate

  individuals who have suffered harm to their reputations due to the

  careless or malicious communications of others. McIntyre v. Jones,

  

 (Colo. App. 2008) (citing Keohane v. Stewart,

  

 (Colo. 1994)). Protection of one’s reputation

  “reflects no more than our basic concept of the essential dignity and

  worth of every human being” and recognizes that once an

  individual’s reputation is damaged, it is extremely difficult to

  restore. 

 (quoting Keohane, 

, in turn quoting

  Rosenblatt v. Baer, 

 (1966) (Stewart, J., concurring)).

¶ 60   But the interest of protecting one’s reputation is not

  paramount in all circumstances. Shoen v. Shoen, 

. “It must be weighed against society’s interest in encouraging

  and fostering vigorous public debate [on matters of public concern],

  an interest protected by the First Amendment to the United States

  Constitution and article II, section 10 of the Colorado Constitution.”

  

 (quoting McIntyre, 

). To account for this

  important societal interest, the common law of defamation has been

                                    27
  modified in one significant way for certain classes of cases.

  McIntyre, 

.

¶ 61   In New York Times Co. v. Sullivan, 

 (1964), the

  United States Supreme Court first recognized that the First

  Amendment precludes a public official

            from recovering damages for a defamatory
            falsehood relating to his official conduct unless
            he proves that the statement was made with
            “actual malice” — that is, with knowledge that
            it was false or with reckless disregard of
            whether it was false or not.

  

.

¶ 62   The Supreme Court, however, refused to impose a federal

  constitutional standard on defamatory statements made about

  private individuals. Gertz v. Robert Welch, Inc., 

 (1974). Private individuals, the Court reasoned, were more

  vulnerable to injury given their limited opportunities to counteract

  false statements. 

. Unlike public officials, the Court

  explained, private persons do not voluntarily expose themselves to

  the increased risk of injury from defamatory falsehoods and are

  therefore more deserving of recovery. 

 Thus, the Court held that

  “so long as they do not impose liability without fault, the States may


                                    28
  define for themselves the appropriate standard of liability for a

  publisher or broadcaster of defamatory falsehood injurious to a

  private individual.” 

.

¶ 63   Following Gertz, the Colorado Supreme Court extended the

  New York Times “actual malice” standard of liability to cases where

  “a defamatory statement has been published concerning one who is

  not a public official or a public figure, but the matter involved is of

  public or general concern.” Walker v. Colo. Springs Sun, Inc.,

  

, 

 (1975), overruled on other

  grounds by Diversified Mgmt., Inc. v. Denver Post, Inc., 

 (Colo. 1982); see also Diversified Mgmt., 

  (refining the “actual malice” standard of liability by “adopting the

  same definition of ‘reckless disregard’ in cases involving public

  officials, public figures, and matters of public or general concern”).

¶ 64   But Colorado law provides no clear guidelines for determining

  whether a matter is of “public concern.” “Generally, a matter is of

  public concern whenever ‘it embraces an issue about which

  information is needed or is appropriate,’ or when ‘the public may

  reasonably be expected to have a legitimate interest in what is being

  published.’” Williams v. Cont’l Airlines, Inc., 

 (Colo.

                                     

) (quoting Lewis v. McGraw-Hill Broad. Co., 

 (Colo. App. 1992)). Stated another way, public concern

  “is something that is a subject of legitimate news interest; that is, a

  subject of general interest and of value and concern to the public”

  at the time of publication. Shoen, ¶ 25 (quoting City of San Diego v.

  Roe, 

 (2004)). “[A] matter is of public concern when

  ‘it can be fairly considered as relating to any matter of political,

  social, or other concern to the community . . . .” McIntyre, 

 (quoting Barrett v. Univ. of Colo. Health Scis. Ctr., 

 (Colo. App. 1993)).

¶ 65   Conversely, Colorado courts have made it clear that private

  disputes between private individuals are not matters of public

  concern. See, e.g., People v. Ryan, 

 (Colo. 1991)

  (“[I]t is inappropriate to require that defamatory false statements

  must be made with ‘actual malice’ in situations, such as the

  present case, where one private person disseminates defamatory

  statements about another private individual in the victim’s

  community.”); McIntyre, 

-26 (statement concerning the

  qualifications of an applicant for bookkeeper of small homeowners

  association did not involve a matter of public concern); Sky Fun 1,

                                     30
  Inc. v. Schuttloffel, 

 (Colo. App. 2000) (statements by

  a former employer to a prospective employer regarding a pilot’s

  abilities did not involve a matter of public concern), aff’d in part and

  rev’d in part on other grounds, 

 (Colo. 2001); Williams,

  

 (statements by a flight attendant that a pilot

  attempted to rape her were not matters of public concern).

  Although boundaries between a purely private matter and a matter

  of public concern cannot be readily defined and must be determined

  on a case-by-case basis, “the balance should be struck in favor of a

  private plaintiff if his or her reputation has been injured by a

  non-media defendant in a purely private context.” Williams,

  

.2

¶ 66   In my view, Zueger v. Goss, 

, is instructive. The

  widow of a renowned Native American artist had a dispute with the



  2 Indeed, it is far from clear whether the boundary delineating
  private and public matters in this context is, or should be, any
  different than the boundary between private disputes and matters
  “in connection with a public issue” sufficient to implicate the
  protections of the anti-SLAPP statute in the first place. It is at least
  arguable that if the nature of a particular dispute is not sufficiently
  of public concern to warrant the constitutional protections of actual
  malice, it is also not of sufficient public interest to warrant the
  statutory protections of the anti-SLAPP statute.
                                     31
  plaintiffs, an art dealer and others who handled her deceased

  husband’s artwork. Id. at ¶ 2. Believing that the plaintiffs were

  making and selling unauthorized reproductions of his artwork, the

  widow made disparaging statements on the internet about the

  plaintiffs’ business activity. Id. The plaintiffs, in turn, sued the

  widow for, among other things, intentional interference with

  prospective business advantage and defamation. Id.

¶ 67   A division of this court held that the widow’s statements on

  the internet about the plaintiffs’ business activity did not involve a

  matter of public concern because they involved a private business

  dispute between private parties. Id. at ¶ 28. In support of this

  conclusion, the court noted that the record contained no evidence

  suggesting that anyone other than the widow had been directly

  affected by the plaintiffs’ business activity or that any government

  entities had become involved. Id. Thus, the division concluded that

  the plaintiffs were not required to prove actual malice to succeed on

  their claims. Id. at ¶¶ 25, 29.

¶ 68   The same can be said about Sullivan’s online reviews in this

  case. The allegedly defamatory statements were made by a

  nonmedia defendant (Sullivan) about private individuals (a licensed

                                     32
  dentist and his dental practice). These statements did not

  automatically become a matter of public concern because Sullivan

  posted her reviews on Yelp and Google. See Snead v. Redland

  Aggregates Ltd., 

 (5th Cir. 1993) (“A speaker

  cannot turn his speech into a matter of public concern simply by

  issuing a press release.”). Rather, the content and context of

  Sullivan’s statements reveal that they involve a private dispute with

  her dentist. Specifically, Sullivan’s online reviews discuss her

  dissatisfaction with the root canal therapy she received from

  Dr. Stubbs because, in her view, he overfilled her root canals,

  causing extreme pain. The record contains no evidence that Dr.

  Stubbs’ dental care affected anyone other than Sullivan or that

  Sullivan’s message was intended to enlighten the public about a

  political, social, or other concern in the community. Accordingly,

  Sullivan’s online reviews do not involve a matter of public concern.

¶ 69   In my view, because of the proliferation of internet forums

  such as Yelp and Google, the majority’s opinion risks

  constitutionalizing defamation claims involving private disputes

  between private individuals. Today, anyone who is dissatisfied with

  a local grocery store, florist, pizza parlor, or dentist can write an

                                     33
  online review. While there are benefits to such forums, I do not

  believe the New York Times “actual malice” standard — which was

  intended primarily to protect media defendants from liability for

  publishing stories about public officials, public figures, and matters

  of public concern — was ever intended to apply to such private

  disputes.

¶ 70   But given the parties’ agreement that Sullivan’s online reviews

  were made “in connection with a public issue,” I respectfully concur

  in the judgment only.




                                    34