Facts

Plaintiffs Gelareh Rahbar, DDS, a dentist, and her corporation, Rahbar Dentistry, PC (collectively "Dr. Rahbar"), filed a complaint for equitable relief against Jennifer Batoon, a former patient of Dr. Rahbar.

The complaint alleged that two prior lawsuits brought by Dr. Rahbar against Batoon were decided incorrectly due to extrinsic fraud and extrinsic mistake, and sought to vacate the judgments in those prior lawsuits on that basis.

The prior lawsuits both concerned the same Yelp! review written by Batoon concerning her experience with Dr. Rahbar. Both of those cases were decided pursuant to the anti-SLAPP (Strategic Lawsuit Against Public Participation) law, Code of Civil Procedure section 425.16, after the Court in each case concluded that Dr. Rahbar's claims arose from Batoon's constitutionally protected speech in a public forum (Yelp!) on an issue of public interest (Dr. Rahbar's services), and were meritless because they were barred by the statute of limitations. The Court also awarded attorney's fees and costs to Batoon in both cases. The second case is on appeal with oral arguments pending.

The extrinsic fraud alleged by Dr. Rahbar consisted of alleged statements by Batoon's counsel that allegedly led Dr. Rahbar's counsel to fail to file timely opposition to Batoon's first anti-SLAPP motion and, Batoon's alleged concealment of evidence that would have tolled the statute of limitations, and filing of an allegedly false declaration in the first suit concerning facts that would have tolled the statute. The extrinsic mistake alleged by Dr. Rahbar consisted of Dr. Rahbar's allegedly excusable failure to present evidence that the statute of limitations should have been tolled in support of her claims in the first suit and a mistake of law by Dr. Rahbar in failing to file opposition to the anti-SLAPP motion in the second suit.

Batoon filed an anti-SLAPP motion in response to this third lawsuit too, arguing that it arose from statements made in a judicial proceeding, and that Dr. Rahbar could not show a probability of prevailing on her claims.

PLAINTIFF'S CONTENTIONS:
Dr. Rahbar argued in opposition to Batoon's anti-SLAPP motion that the alleged course of conduct engaged in by Batoon and her counsel should not be protected by the anti-SLAPP law. Dr. Rahbar also argued that the issues in the case were equitable, whether Dr. Rahbar could prove fraud or mistake, and those issues did not implicate speech or the posting on Yelp!

Plaintiff further argued she had shown a probability of prevailing on her claims, because evidence she had found online purportedly showed that the statute of limitations should have been tolled in the two prior lawsuits, and therefore the judgments should not have been entered against her.

DEFENDANT'S CONTENTIONS:
Batoon argued that Dr. Rahbar's claims were subject to the anti-SLAPP law because they arose from Batoon's, and her counsel's, statements in a judicial proceeding. Batoon further argued that Dr. Rahbar could not show a probability of prevailing on her claims because, inter alia, she had failed to present any admissible evidence showing that the statute of limitations in the two prior lawsuits should have been tolled.

Result

Hon. James J. McBride granted the special motion to strike the complaint of Gelareh Rahbar, DDS, and Rahbar Dentistry, PC, pursuant to the anti-SLAPP law, Code of Civil Procedure section 425.16, and dismissed the complaint with prejudice. Batoon is now entitled to her attorney fees and costs incurred defending against the meritless SLAPP. Plaintiff has indicated the ruling will be appealed.

Other Information

FILING DATE: Nov. 8, 2011.