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

2022COA145

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., 2022 COA 123, ¶ 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 2022COA145

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., 2022 COA 123, ¶¶ 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., 2022 COA 109M, ¶¶ 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, 2016

BYU L. Rev. 741, 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,

376 P.3d 604, 608 (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.” Id. at ¶¶ 23-24 (quoting Baral, 376 P.3d

at 608).

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., 252 P.3d 14, 19 (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, 2020 CO 82, ¶ 45 (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, 882 P.2d 1293, 1297 (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, 2014 COA 26, ¶ 15 (quoting Williams v. Dist. Ct.,

866 P.2d 908, 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., 832 P.2d 1118, 1121 (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, 197 Colo. 306, 318, 592 P.2d 792, 800 (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, 2020 CO 41, ¶ 10 (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.,

659 P.2d 1351, 1361-62 (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, 2013 COA 100, ¶ 21. 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,

719 P.2d 340, 342 (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, 832 P.2d at 1124. Nor does

evidence that the defamed party simply denied the veracity of the

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

Corp., 782 P.2d 805, 809 (Colo. App. 1989); accord DiLeo v.

Koltnow, 200 Colo. 119, 126-27, 613 P.2d 318, 324 (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, 273 Cal. Rptr. 3d 695, 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 id. 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, 832 P.2d at 1124.

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,

719 P.2d at 342. 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, 782 P.2d at

809; DiLeo, 200 Colo. at 126-27, 613 P.2d at 324.

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

Connaughton, 491 U.S. 657, 677-88 (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, 659 P.2d at 1360.

¶ 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. Id. 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, 782 P.2d at 809-10

(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., 943 P.2d 10, 16 (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., 841 F. Supp. 310,
315 (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, 2020 CO 82, ¶ 45 (“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,

194 P.3d 519, 524 (Colo. App. 2008) (citing Keohane v. Stewart,

882 P.2d 1293, 1297 (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. Id. (quoting Keohane, 882 P.2d at 1297-98, in turn quoting

Rosenblatt v. Baer, 383 U.S. 75, 92 (1966) (Stewart, J., concurring)).

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

paramount in all circumstances. Shoen v. Shoen, 2012 COA 207,

¶ 21. “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.”

Id. (quoting McIntyre, 194 P.3d at 523-24). 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, 194 P.3d at 524.

¶ 61 In New York Times Co. v. Sullivan, 376 U.S. 254 (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.

Id. at 279-80.

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

constitutional standard on defamatory statements made about

private individuals. Gertz v. Robert Welch, Inc., 418 U.S. 323,

348-49 (1974). Private individuals, the Court reasoned, were more

vulnerable to injury given their limited opportunities to counteract

false statements. Id. at 344-45. 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. Id. 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.” Id. at 347.

¶ 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.,

188 Colo. 86, 98, 538 P.2d 450, 457 (1975), overruled on other

grounds by Diversified Mgmt., Inc. v. Denver Post, Inc., 653 P.2d

1103 (Colo. 1982); see also Diversified Mgmt., 653 P.2d at 1106

(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., 943 P.2d 10, 17 (Colo.

29
App. 1996) (quoting Lewis v. McGraw-Hill Broad. Co., 832 P.2d

1118, 1121 (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, 543 U.S. 77, 83 (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, 194 P.3d

at 525 (quoting Barrett v. Univ. of Colo. Health Scis. Ctr., 851 P.2d

258, 263 (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, 806 P.2d 935, 939 (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, 194 P.3d 525-26 (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, 8 P.3d 570, 575 (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, 27 P.3d 361 (Colo. 2001); Williams,

943 P.2d at 18 (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,

943 P.2d at 18.2

¶ 66 In my view, Zueger v. Goss, 2014 COA 61, 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., 998 F.2d 1325, 1330 (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