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Tender Care Veterinary Center v. Lind-Barnett.

2023 COA 114. No. 22CA1611. Defamation—Action Involving Exercise of Constitutional Rights—Anti-SLAPP Statute—Special Motion to Dismiss—Issue of Public Interest—Public Issue.

November 30, 2023

Lind-Barnett brought her puppy to Tender Care Veterinary Center, Inc. (Tender Care) for emergency veterinary services. A vet examined the puppy and released her back to Lind-Barnett’s care. The next morning, a different vet clinic diagnosed the dog with pneumonia and successfully treated it. Several days later, Lind-Barnett contacted Tender Care to inform it that it had improperly treated her puppy and requested a refund, which Tender Care denied. Two months later, Davis took her dog to Tender Care for treatment. Tender Care diagnosed the dog with a resolved seizure, but when the dog continued to have symptoms overnight, Davis brought her to a different vet clinic, which diagnosed the dog with vestibular disease and treated it. Lind-Barnett posted six online reviews about her experience with Tender Care, and Davis responded to several of those posts with similar posts about the adequacy of care her pet received at Tender Care and Tender Care’s business practices. In their posts, Lind-Barnett and Davis (defendants) asserted, among other things, that Tender Care was guilty of malpractice and was incompetent. After defendants refused to remove their posts, Tender Care brought an action for defamation per se against each defendant, based on 104 of Lind-Barnett’s statements and 10 of Davis’s statements. Defendants filed a special motion to dismiss the defamation claims under Colorado’s anti-SLAPP (strategic lawsuits against public participation) statute. The district court concluded that defendants had failed to establish that their statements addressed “matters of public interest or a public issue,” so the matter did not fall within the protections of the anti-SLAPP statute. Alternatively, the court determined that, even if the case had fallen within the statute’s scope, it could not be dismissed because Tender Care had demonstrated a reasonable likelihood of prevailing on its claims. The court denied defendants’ motion.

On appeal, defendants argued that the district court erred by denying their special motion to dismiss. Because defendants’ statements were not made in connection with any executive, legislative, or judicial body or function, to prevail on a special motion to dismiss, defendants had to show that the conduct underlying Tender Care’s claims falls within the anti-SLAPP statute by arising from defendants’ exercise of free speech rights in addressing matters of public interest. Here, the vast majority of defendants’ statements do not involve a public issue or issue of public interest because they weren’t directed at public discussion but instead expressed personal animosity and were made primarily for purposes of airing a private dispute. Accordingly, the statements are not protected by the anti-SLAPP statute, and the district court did not err in denying the special motion to dismiss.

The order denying the special motion to dismiss was affirmed.

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

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