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Creekside Endodontics, LLC v. Sullivan.

2022 COA 145. No. 21CA1615. Defamation— Anti-SLAPP Statute—First Amendment Rights—Special Motion to Dismiss.

December 22, 2022

Dr. Stubbs, a licensed dentist, is the owner and sole member of Creekside Endodontics, LLC (collectively, plaintiffs). Dr. Stubbs performed root canal therapy on Sullivan, but she continued to experience pain. Subsequently, three dentists told Sullivan that her pain could have been caused by Dr. Stubbs overfilling her teeth. Sullivan posted three one-star reviews of Dr. Stubbs online, which included statements that Dr. Stubbs overfilled the root canals, causing her pain; and expressed grievances about his response to her complaints. 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 based on Colorado’s anti-SLAPP (strategic lawsuits against public participation) statute. The court denied the motion.

On appeal, Sullivan argued that the district court erred in denying her special motion to dismiss. Under the anti-SLAPP statute, the court must grant the special motion to dismiss and award the defendant attorney fees and costs if the court determines there is not a reasonable likelihood that the plaintiff will prevail on its claims. Where the defamatory statements involve a matter of public concern, plaintiffs must establish, at the special motion to dismiss stage, a reasonable likelihood that they will be able to prove by clear and convincing evidence at trial that the statements were made with actual malice. Because the district court concluded that Sullivan’s reviews were made “in connection with a public issue,” and plaintiffs did not submit argument on whether Sullivan’s statements related to a matter of purely private concern, the court of appeals assumed, without deciding, that Sullivan’s reviews were made in connection with a public issue. Here, plaintiffs did not show a reasonable likelihood that Sullivan made the statements related to Dr. Stubbs’s dental work with actual malice because Sullivan based her statements on three professional opinions that overfilling could be the cause of her pain, and Dr. Stubbs’s persistent disagreement that the overfilling caused her pain is insufficient to establish actual malice. Further, statements of pure opinion are not actionable in defamation. Here, Sullivan’s complaints stemming from her frustration with Dr. Stubbs’s refusal to accept her pain theory, his suggestion that she consult a neurologist, and his eventual termination of their doctor-patient relationship are nonactionable because she provided the factual reasons for her opinions, so her statements are protected by the First Amendment. And because plaintiffs did not have a reasonable likelihood of prevailing on their defamation claims as a matter of law, Sullivan is entitled to recover attorney fees and costs.

The judgment denying the special motion to dismiss was reversed. The case was remanded with directions to dismiss the complaint and award Sullivan attorney fees and costs.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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