Tender Care Veterinary Center, Inc. v. Jennifer Lind-Barnett

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
November 30, 2023

2023COA114

No. 22CA1611, Tender Care v. Barnett — Torts — Defamation;
Courts and Court Procedure — Action Involving Exercise of
Constitutional Rights — Anti-SLAPP — Special Motion to
Dismiss — Issue of Public Interest — Public Issue

In this defamation action, a division of the court of appeals

considers whether an online review of a veterinary clinic was made

in connection with an issue of public interest such that it is subject

to the protections of Colorado’s anti-SLAPP statute, § 13-20-1101,

C.R.S. 2023. Recognizing that a private dispute concerning the

quality of veterinary services may implicate a public interest, the

division determines that (1) there must be some nexus between the

challenged statements and the issue of public interest; (2) labelling

speech a “warning” does not automatically warrant protection
under the anti-SLAPP statute; and (3) such protection is not

warranted where protected statements are merely incidental to

unprotected conduct.

Examining the entire context of the statements made here —

including the speaker, audience, purpose, and content — the

division concludes that statements made primarily for the purpose

of airing a private dispute, and that are merely incidental to any

protected conduct, are not protected by the anti-SLAPP statute.

Consequently, the division affirms the district court’s decision

denying a special motion to dismiss the action.
COLORADO COURT OF APPEALS 2023COA114

Court of Appeals No. 22CA1611
El Paso County District Court No. 22CV30676
Honorable David Prince, Judge

Tender Care Veterinary Center, Inc.,

Plaintiff Counterclaim Defendant-Appellee,

v.

Jennifer Lind-Barnett and Julie Davis,

Defendants Counterclaimants-Appellants.

ORDER AFFIRMED

Division I
Opinion by JUDGE DAILEY
Dunn and Harris, JJ., concur

Announced November 30, 2023

Relevant Law, Tanner W. Havens, Colorado Springs, Colorado, for Plaintiff
Counterclaim Defendant-Appellee

Kane Law Firm, P.C., Mark H. Kane, Colorado Springs, Colorado; Law Office of
Steven D. Zansberg, LLC, Steven D. Zansberg, Denver, Colorado, for
Defendants Counterclaimants-Appellants
¶1 Defendants, Jennifer Lind-Barnett and Julie Davis, filed a

special motion to dismiss defamation claims brought by plaintiff,

Tender Care Veterinary Center, Inc. (Tender Care), pursuant to

Colorado’s anti-SLAPP statute, section 13-20-1101, C.R.S. 2023.

The district court denied their motion, and they now appeal. We

affirm.

I. Background

¶2 According to Tender Care’s complaint, in January 2022, Lind-

Barnett brought her puppy, Pinkerbell, to Tender Care for

emergency veterinary services; a vet examined the puppy and

released her back to Lind-Barnett’s care. When the puppy did not

appear better, Lind-Barnett administered her own treatment to the

puppy at home. The next morning, she brought the puppy to a

different vet clinic, where the dog was diagnosed with pneumonia

and successfully treated. Several days later, Lind-Barnett

contacted Tender Care to inform it that it had improperly treated

her puppy. Tender Care initiated a review of the puppy’s treatment

and, after determining that the puppy had received the requisite

standard of care, refused Lind-Barnett’s request for a refund.

1
¶3 In March 2022, Davis took her dog, Spicy, to Tender Care for

ataxia, or difficulty walking and balancing. After an examination

and bloodwork, Tender Care diagnosed the dog with a resolved

seizure. Davis took her dog home, and when the dog continued to

have symptoms overnight, Davis brought her to a different vet

clinic, where the dog was diagnosed with vestibular disease and

treated.

¶4 In February and March 2022 — after Tender Care declined

Lind-Barnett’s refund request — Lind-Barnett posted six online

reviews about her experience with Tender Care on her personal

Facebook page, Tender Care’s Facebook page, and four different

community-based Facebook pages.1

¶5 In March 2022, Davis responded to several of Lind-Barnett’s

posts with similar posts about the adequacy of care her pet received

at Tender Care and Tender Care’s business practices.

1 Tender Care’s practice is in Falcon, Colorado.
Lind-Barnett posted
her comments on the Black Forest Community Facebook Page; the
Falcon, Peyton, Calhan, Black Forest and Surrounding Areas
Community Facebook Page; the Calhan, CO and Surrounding Areas
Community Facebook Page; and the Neighborhood Network of Black
Forest and Surrounding Areas Community Facebook Page.

2
¶6 In their posts, defendants asserted, among other things, that

Tender Care was guilty of professional “malpractice”; that it

employs “incompetent,” “inept,” and “less than adequate” doctors

and staff who are “ignoran[t]” and “dishonest,” “lack training[ and]

misdiagnose,” and repeatedly commit “malpractice”; that Tender

Care has numerous “complaints” filed against it “with the labor

board”; that Tender Care allowed and encouraged “covid positive

employees to come into work”; that “dozens of others” have

“post[ed]” that the Tender Care owner’s “elderly father,” a former

lawyer, was used “to threaten people”; that Tender Care isn’t

“actually an emergency clinic” but “the biggest scam to ever walk

into our town”; that Tender Care used “lies” and “intimidation,” and

“harassed,” “threaten[ed],” and “bull[ied]” people; that Tender Care

“refuse[d] to take responsibility for anything — especially their own

ineptness”; and that Tender Care “blame[d] [its] client for their

animal’s illness just because they posted a bad review.”

¶7 After defendants refused to remove their posts, Tender Care

instituted the present action for defamation per se against each

defendant, based on 104 of Lind-Barnett’s statements and 10 of

Davis’s statements. Defendants responded, filing a special motion

3
to dismiss under Colorado’s anti-SLAPP statute. After reviewing the

parties’ briefs and accompanying materials and holding a

nonevidentiary hearing, the district court denied defendants’

motion.

¶8 In its order, the court concluded that defendants had failed to

establish that their statements addressed “matters of public interest

or a public issue,” and that, consequently, the matter did not fall

within the protections of the anti-SLAPP statute:

The statements described in the parties’
submissions are a private business dispute,
essentially a pair of customer complaints. The
complaints were statements of alleged fact
regarding the Defendants’ individual customer
experiences. For one Defendant, these
expanded to generalized allegations levelled at
the business, qualifications, and business
practices. Those statements were made on the
internet in social media fora that had
restricted distribution rather than fully public.

. . . [A]s in Zueger [v. Goss, 2014 COA 61], the
allegations made here are of a private business
dispute made on the internet. The court does
not find that anything about the nature of
veterinary services or their arguable location in
a “small community” (in context this
characterization of this community on the
border of a large city is questionable) renders
such matters of public interest for purposes of
the [anti-SLAPP statute].

4
¶9 In the alternative, the court determined that, even if the case

had fallen within the scope of the statute, it could not be dismissed

because Tender Care had demonstrated a reasonable likelihood of

prevailing on its claims.

¶ 10 Defendants now appeal, contending that the district court

erred by denying their special motion to dismiss.

II. Legal Principles and Standard of Review

¶ 11 The General Assembly enacted section 13-20-1101 “to address

lawsuits aimed at stifling or punishing the exercise of the First

Amendment rights to free speech and to petition the government.”

L.S.S. v. S.A.P., 2022 COA 123, ¶ 1. The statute’s purpose is to

“encourage and safeguard” the exercise of these rights “to the

maximum extent permitted by law and, at the same time, to protect

the rights of persons to file meritorious lawsuits for demonstrable

injury.” § 13-20-1101(1)(b).

¶ 12 To effectuate the balancing of these interests, the statute

provides a process for weeding out, at an early stage,

nonmeritorious lawsuits brought in response to a defendant’s

petitioning or speech activity. See Salazar v. Pub. Tr. Inst., 2022

COA 109M, ¶ 12. If a plaintiff’s claims arise from any act by a

5
defendant in furtherance of his or her right of petition or free

speech in connection with a public issue, the court must grant the

defendant’s special motion to dismiss unless it determines that the

plaintiff has shown a reasonable likelihood that he or she will

prevail on the claims. § 13-20-1101(3)(a).

¶ 13 The resolution of a special motion to dismiss involves a two-

step process. At the first step, the defendant has the burden to

show that the conduct underlying the plaintiff’s claims falls within

the statute — i.e., that the claim arises from the defendant’s

exercise of his or her right of petition or free speech. L.S.S., ¶ 21.

Under the statute, a protected act in furtherance of a person’s right

of petition or free speech includes the following:

(I) Any written or oral statement or writing
made before a legislative, executive, or judicial
proceeding or any other official proceeding
authorized by law;

(II) Any written or oral statement or writing
made in connection with an issue under
consideration or review by a legislative,
executive, or judicial body or any other official
proceeding authorized by law;

(III) Any written or oral statement or writing
made in a place open to the public or a public
forum in connection with an issue of public
interest; or

6
(IV) Any other conduct or communication in
furtherance of the exercise of the
constitutional right of petition or the
constitutional right of free speech in
connection with a public issue or an issue of
public interest.

§ 13-20-1101(2)(a).

¶ 14 If the conduct does not fall within the statute’s scope, then the

special motion to dismiss must be denied. If, however, the conduct

falls within the statute’s scope, then the analysis proceeds to a

second step. At this second step, the burden shifts to the plaintiff

to establish a reasonable likelihood of prevailing on the claim.

Rosenblum v. Budd, 2023 COA 72, ¶ 24; Salazar, ¶ 21.2 If the

2 As the United States District Court for the District of Colorado

recognized, divisions of this court differ on how to apply this second
step. See Coomer v. Make Your Life Epic LLC, ___ F. Supp. 3d ___,
___, 2023 WL 2390711, at *3 (D. Colo. Mar. 7, 2023).

One division, noting the similarity of the “reasonable likelihood of
prevailing” standard to that used in evaluating requests for
preliminary injunctive relief, would neither “accept the truth of the
allegations nor make an ultimate determination of their truth,” but
would simply analyze the pleadings and affidavits to determine
“whether the allegations and defenses are such that it is reasonably
likely that a jury would find for the plaintiff.” Salazar v. Pub. Tr.
Inst., 2022 COA 109M, ¶¶ 17, 20-21.

Other divisions, looking to California case law interpreting a
similarly worded anti-SLAPP statute for guidance, have described

7
plaintiff makes such a showing, the motion to dismiss must be

denied. If the plaintiff fails to make such a showing, the special

motion to dismiss must be granted.

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

to dismiss. L.S.S., ¶ 19; Salazar, ¶ 21.

¶ 16 Because California’s anti-SLAPP statute, Cal. Civ. Proc. Code

§§ 425.16-.17 (West 2023), closely resembles Colorado’s statute, we

look to California case law for guidance in construing and applying

section 13-20-1101. L.S.S., ¶ 20; see also Moreau v. U.S. Olympic &

Paralympic Comm., 641 F. Supp. 3d 1122, 1129 (D. Colo. 2022)

(explaining that, because of the similarities between California’s and

the second step as involving more of a “summary judgment-like
procedure” in which the court reviews the pleadings and proffered
evidence, “accepts the plaintiff’s evidence as true,” and determines
“whether the plaintiff has stated a legally sufficient claim and made
a prima facie factual showing sufficient to sustain a favorable
judgment.” L.S.S. v. S.A.P., 2022 COA 123, ¶ 23 (quoting Baral v.
Schnitt, 376 P.3d 604, 608 (Cal. 2016)); accord Anderson v.
Senthilnathan, 2023 COA 88, ¶ 11; Gonzales v. Hushen, 2023 COA
87, ¶ 21; Creekside Endodontics, LLC v. Sullivan, 2022 COA 145,
¶¶ 31-33.

Because of the manner in which we resolve this appeal, we need not
decide which of these approaches we would use.

8
Colorado’s respective anti-SLAPP statutes, state and federal courts

have looked to California case law in construing Colorado’s statute).

III. Analysis

¶ 17 Defendants contend that the district court erred by not

granting their special motion to dismiss Tender Care’s defamation

claims. They assert that, contrary to the district court’s ruling,

(1) their statements qualified for protection under step one of the

anti-SLAPP analysis because they addressed a “public issue” or

“issue of public interest”; and (2) Tender Care cannot, under step

two of the analysis, show a reasonable likelihood of prevailing. We

disagree with their first assertion and do not need to address their

second.

A. Step One: Protected Activity

¶ 18 Because defendants’ statements were not made in connection

with any executive, legislative, or judicial body or function, see

§ 13-20-1101(2)(a)(I)-(II), the protections of the anti-SLAPP statute

apply only if the statements were made “in connection with” a

“public issue” or “an issue of public interest,” § 13-20-

1101(2)(a)(III)-(IV). According to defendants, their statements

9
qualify as such because they were honest, online reviews of a

veterinary practice serving a small, rural community.

¶ 19 Initially, we agree that internet sites available to the public

(like Facebook) are “public forums” for anti-SLAPP purposes. See

Muddy Waters, LLC v. Superior Ct., 277 Cal. Rptr. 3d 204, 214-15

(Ct. App. 2021) (collecting California cases); see also Anderson v.

Senthilnathan, 2023 COA 88, ¶ 24 (noting that statements made on

social media and before the legislature qualified as having been

made in a public forum). But not every website posting involves a

“public issue” or an “issue of public interest.” D.C. v. R.R., 106 Cal.

Rptr. 3d 399, 426 (Ct. App. 2010); see Bikkina v. Mahadevan, 193

Cal. Rptr. 3d 499, 508 (Ct. App. 2015) (“[A] person cannot turn an

otherwise private matter into a matter of public interest simply by

communicating it to a large number of people.”); Du Charme v. Int’l

Brotherhood of Elec. Workers, 1 Cal. Rptr. 3d 501, 509 (Ct. App.

2003) (“[M]ere publication . . . on a Web site[] should not turn

otherwise private information . . . into a matter of public interest.”);

cf. Zueger, ¶ 28 (holding that a widow’s statements on the internet

about the plaintiffs’ business activity, stemming from her

contention that the plaintiffs were making and selling unauthorized

10
reproductions of her deceased husband’s artwork, did not involve a

matter of public concern).

¶ 20 There is no statutory definition of the terms “public issue” or

“issue of public interest.” In applying these terms, the district court

found useful those cases discussing “whether a matter is one of

‘public concern’” for First Amendment freedom of speech purposes.

“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. App. 1996) (quoting Lewis v. McGraw-Hill Broad.

Co., 832 P.2d 1118, 1121 (Colo. App. 1992)).

Somewhat more specifically, 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,” or when it involves “the use of
names, likenesses or facts in giving
information to the public for purposes of
education, amusement, or enlightenment when
the public may reasonably be expected to have
a legitimate interest in” the subject.

McIntyre v. Jones, 194 P.3d 519, 525 (Colo. App. 2008) (first

quoting Barrett v. Univ. of Colo. Health Scis. Ctr., 851 P.2d 258, 263

11
(Colo. App. 1993); and then quoting Lewis, 832 P.2d at 1121); see

City of San Diego v. Roe, 543 U.S. 77, 83-84 (2004) (For First

Amendment purposes, a matter is of public concern when it 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.”); Zueger, ¶ 27 (“[A] matter of public concern is one that

affects a broad segment of the community or affects a community in

a manner similar to that of a governmental entity.” (quoting

McIntyre, 194 P.3d at 526)).

¶ 21 California courts interpret the terms “public issue” or “issue of

public interest” in their anti-SLAPP statute in a similar manner. “In

articulating what constitutes a matter of public interest,” they

look to certain specific considerations, such as
whether the subject of the speech or activity
“was a person or entity in the public eye” or
“could affect large numbers of people beyond
the direct participants”; and whether the
activity “occur[red] in the context of an ongoing
controversy, dispute or discussion,” or
“affect[ed] a community in a manner similar to
that of a governmental entity.”

FilmOn.com Inc. v. DoubleVerify Inc., 439 P.3d 1156, 1162 (Cal.

2019) (citations omitted); see also Woodhill Ventures, LLC v. Yang,

283 Cal. Rptr. 3d 507, 512-13 (Ct. App. 2021) (noting “three

12
categories of statements or conduct that qualify as ‘public interest’:

1. Statements or conduct that concern a person or entity in the

public eye; 2. Statements or conduct that could directly affect a

large number of persons beyond the direct participants; and

3. Statements or conduct involving a topic of recognizing

widespread interest”).

¶ 22 Here, defendants’ statements did not concern political or social

issues, public officials, people or businesses that had been the

subject of news articles, a large number of persons,3 or even a topic

of widespread public interest. But defendants maintain that their

statements nonetheless qualify for anti-SLAPP protection because

they conveyed important consumer information about a significant

“public issue” or “issue of public interest” — that is, the quality of

veterinary services in a small, rural community.

3 From the record, it appears that forty-nine people across six

websites participated in discussing Tender Care’s services and
business practices. Fourteen people (besides Lind-Barnett and
Davis) related having had negative firsthand experiences with
Tender Care; eleven others related negative information about
Tender Care they’d “heard” from others; and several others reported
having had positive experiences with Tender Care. (Tender Care
asserted that it, its owners, and most of its staff were blocked or
restricted from participating in the discussions on these websites.)

13
¶ 23 While not identical, this position finds some support in

California cases concluding that online postings about the quality of

medical care or the competence of medical doctors or dentists can

involve issues of public concern or interest. See, e.g., Haworth v.

Pinho, No. B313430, 2023 WL 3017282, at *1-13 (Cal. Ct. App. Apr.

20, 2023) (unpublished opinion) (posts or articles on website

concerned doctor’s competence to perform surgical services, his

professional conduct, and the financial fitness of his medical

practice, “matters about which the public, including current and

future patients, have a vital interest”); Yang v. Tenet Healthcare Inc.,

262 Cal. Rptr. 3d 429, 433-34 (Ct. App. 2020) (physician’s allegedly

deficient ethics and qualification constituted public issue);

Healthsmart Pac., Inc. v. Kabateck, 212 Cal. Rptr. 3d 589, 599 (Ct.

App. 2016) (Consumers “have an interest in being informed of

issues concerning particular doctors and health care facilities.”);

Wong v. Jing, 117 Cal. Rptr. 3d 747, 759 (Ct. App. 2010) (holding

that negative Yelp review of experience with dentist involved a

public issue where post discussed use of silver amalgam containing

mercury in treating children); Gilbert v. Sykes, 53 Cal. Rptr. 3d 752,

761 (Ct. App. 2007) (finding patient’s website concerned a matter of

14
public interest that, rather than solely attacking plaintiff doctor,

contributed toward public discussion and debate about the benefits

and risks of plastic and cosmetic surgery); see also Aristocrat Plastic

Surgery, P.C. v. Silva, 169 N.Y.S.3d 272, 276–77 (App. Div. 2022)

(posting reviews of experience with plastic surgeon “to provide

information to potential patients, including reasons not to book an

appointment with [the doctor],” was matter of public interest); cf.

Carver v. Bonds, 37 Cal. Rptr. 3d 480, 493 (Ct. App. 2005)

(newspaper article critical of medical practitioner involved an issue

of public interest because it contained consumer warning

information).

¶ 24 We perceive no reason why a different conclusion should be

reached in cases involving consumer information about veterinary

services. After all, “the welfare of animals, including pets, is an

important concern of our society.” In re Marriage of Isbell, No.

B173850, 2005 WL 1744468, at *1 (Cal. Ct. App. July 26, 2005)

(unpublished opinion). “It cannot be doubted that a special

relationship exists between humans and dogs. . . . The expression

‘a dog is a man’s best friend’ attests to the joy and closeness often

experienced between people and dogs.” State v. Anderson, 566

15
N.E.2d 1224, 1225-26 (Ohio 1991). So too with cats and other pets

— all of whom may require veterinary services to retain or maintain

their health. See Sacks v. Haslet, No. D072372, 2018 WL 4659509,

at *8-9 (Cal. Ct. App. Sept. 28, 2018) (unpublished opinion)

(whether trainer was qualified to care for animals and posed a

danger to them were issues of public interest).

¶ 25 And as it does with the practice of medicine, Colorado

promotes public health, safety, and welfare by regulating the

practice of veterinary medicine to “safeguard[] the people of this

state against incompetent, dishonest, or unprincipled

practitioners.” § 12-315-102, C.R.S. 2023. A veterinarian is “a

person who has received a doctor’s degree in veterinary medicine, or

its equivalent, from a school of veterinary medicine,” § 12-315-

104(18), C.R.S. 2023, and is subject to discipline by the State Board

of Veterinary Medicine for “[i]ncompetence, negligence, or other

malpractice in the practice of veterinary medicine,” § 12-315-

112(1)(k), C.R.S. 2023.

¶ 26 Thus, while Tender Care maintains the posts aren’t subject to

the anti-SLAPP statute because they relate to a purely private

business dispute, we note that “speech or conduct, considered in

16
light of its context, may [nonetheless] reasonably be understood to

implicate a public issue, even if it also implicates a private dispute.”

Geiser v. Kuhns, 515 P.3d 623, 633–34 (Cal. 2022).

¶ 27 But the step-one analysis does not end with the identification

of a public concern, issue, or interest to which statements could

theoretically relate. A particular type of nexus must exist between

the challenged statements and the asserted issue of public interest.

FilmOn.com, 439 P.3d at 1165.

Agile thinkers always can create some kind of
link between a statement and an issue of
public concern. All you need is a fondness for
abstraction and a knowledge of popular
culture.

This pervasive potential means there must be
“some degree of closeness between the
challenged statements and the asserted public
interest.” A tangential relationship is not
enough. There is “a need to go beyond the
parochial particulars of the given parties.”

Woodhill Ventures, LLC, 283 Cal. Rptr. 3d at 513 (citations omitted).

¶ 28 “[I]t is not enough that the statement refer to a subject of

widespread public interest; the statement must in some manner

itself contribute to the public debate.” FilmOn.com, 439 P.3d at

1166 (quoting Wilbanks v. Wolk, 17 Cal. Rptr. 3d 497, 506 (Ct. App.

17
2004)). And that determination can “hardly [be] undertake[n]

without incorporating considerations of context — including

audience, speaker, and purpose.” Id.; see McIntyre, 194 P.3d at 525

(“In determining whether statements involve a matter of public

concern, we . . . analyze ‘the content, form, and context of the

statements, in conjunction with the motivation or “point” of the

statements as revealed by the whole record.’” (quoting Barrett, 851

P.2d at 263)).

¶ 29 To illustrate, in Gilbert, 53 Cal. Rptr. 3d at 756, a patient who

was unhappy with the results of her plastic surgery created a

website that, among other things, provided consumer information

and advice for those considering plastic surgery. The site also

related her negative experiences with the doctor who performed her

surgery. The doctor sued her for defamation. In granting the

patient’s motion to dismiss under California’s anti-SLAPP statute,

the court rejected the doctor’s claim that the statements did “not

contribute to the public debate because they only concern[ed] [the

patient’s] interactions with him.” Id. at 760. The court instead

concluded that “plastic surgery is a subject of widespread public

interest and discussion” and the patient’s website contributed to

18
the public debate about plastic surgery by providing information on

the “benefits and risks of plastic surgery in general.” Id. The

website did this by including not just the patient’s personal negative

experience, but also general advice, information, and resources for

those considering plastic surgery as well as a contact page for

shared experiences. Id. Thus, the court concluded the website was

a matter of public interest because it “was not limited to attacking

[the physician], but contributed to the general debate over the pros

and cons of undergoing cosmetic surgery.” Id. at 762; see also

Wong, 117 Cal. Rptr. 3d at 760 (Yelp review about a pediatric

dentist’s use of nitrous oxide and silver amalgam for fillings was a

matter of public interest because it “was not just a highly critical

opinion of [the dentist]”; it “was [also] part of a public discussion”

on the use of nitrous oxide and silver amalgam in treating children,

which is an issue of public interest).

¶ 30 Defendants argue their posts are similarly protected because

their posts (or at least a few of them) related to their claim that

Tender Care had misdiagnosed their pets. But unlike the patient’s

consumer website in Gilbert, defendants’ posts did not contribute to

any broader public discussion about pet health care or connect to

19
any broader issue of public concern — for example, veterinary

diagnostic issues, shortages in or access to veterinary care,

oversight of veterinarians, the general quality of care for animals

outside large cities, veterinarians’ lack of training for the care of

smaller dogs, or how overbreeding can cause health problems for

certain animals. See Gilbert, 53 Cal. Rptr. 3d at 761; Jackson v.

Mayweather, 217 Cal. Rptr. 3d 234, 246 (Ct. App. 2017) (“[S]imply

because a general topic is an issue of public interest, not every

statement somewhat related to that subject is also a matter of

public interest within the meaning of [the statute].”); cf. Whitelock v.

Stewart, 661 S.W.3d 583, 596 (Tex. App. 2023) (“[C]ommunications

about animal abuse can be considered of concern to the public or of

interest to the community.”).

¶ 31 Rather, read in context, the posts’ purpose was, in Lind-

Barnett’s own words, “to deal with [Tender Care] once and for all” —

that is, to exact some revenge by putting it out of business. See

Woodhill Ventures, LLC, 283 Cal. Rptr. 3d at 516 (“Courts must

scrutinize the purpose of the statements . . . .”). “But ‘an attempt to

exact a personal revenge’ by causing others to ostracize the target is

20
not a protected public interest statement.” Id. at 515 (quoting

Wilbanks, 17 Cal. Rptr. 3d at 508 n.6).

¶ 32 And even if we assume a couple of the diagnostic statements

went beyond defendants’ parochial issues concerning their pets’

disputed diagnoses and connected to some broader public

discussion, when a plaintiff pleads claims based on both protected

and unprotected conduct, anti-SLAPP protections don’t apply if “the

protected conduct is ‘merely incidental’ to the unprotected

conduct.” Comstock v. Aber, 151 Cal. Rptr. 3d 589, 601 (Ct. App.

2012) (quoting Peregrine Funding, Inc. v. Sheppard Mullin Richter

& Hampton LLP, 35 Cal. Rptr. 3d 31, 40 (Ct. App. 2005)); see

Gaynor v. Bulen, 228 Cal. Rptr. 3d 243, 257-58 (Ct. App. 2018);

accord Hylton v. Frank E. Rogozienski, Inc., 99 Cal. Rptr. 3d 805,

810 (Ct. App. 2009) (“If the core injury-producing conduct upon

which the plaintiff’s claim is premised does not rest on protected

speech or petitioning activity, collateral or incidental allusions to

protected activity will not trigger application of the anti-SLAPP

statute.”).

¶ 33 Here, the posts related to the alleged misdiagnoses are far

eclipsed by the numerous posts expressing Lind-Barnett’s personal

21
animosity toward the business. Specifically, of the thirty-seven

statements Lind-Barnett initially posted on Tender Care’s Facebook

page, only eight expressly related to information regarding

Pinkerbell’s treatment and diagnosis by Tender Care.4 Most of the

posts simply attack Tender Care and its staff. Specifically, Lind-

Barnett expressed her displeasure with the clinic personnel’s

response to her complaints (she called them bullies and liars who

tried to intimidate her) and with the Tender Care’s refusal to refund

her money and apologize to her.5 Similarly, with the exception of

4 This posting is reproduced as Appendix A to this opinion. It was
reposted, in its entirety, on the community Facebook pages. And it
was reposted on Lind-Barnett’s Facebook page with four additional
sentences, none of which related to diagnostics or business
practices. See Appendix B (Lind-Barnett’s posting on her Facebook
page).

5 Lind-Barnett stated several times that what she initially wanted

was a refund from Tender Care:
 “I gave them a chance to make it right and instead of an
apology we got false accusations and were treated cruely
(sic) and with distain (sic).”
 “As the PRETEND ‘head vet’ clearly stated in her verbal
assault on me (which we recorded) they DO NOT give
money back.”
 “All I want is for them to make it right. My money back
would be a great start. An apology would be such an
amazing way to handle such mistreatment of their
customers.”

22
four sentences recounting her dog’s treatment, Davis’s comments

are primarily commentary on/agreement with Lind-Barnett’s

personal attacks.

¶ 34 Lind-Barnett insists that many of her statements served the

public interest of warning others of Tender Care’s allegedly

substandard care. But in context, the purpose of her “warnings”

was simply to call others to join her crusade against Tender Care to

punish it for what she thought was an inadequate response to her

criticisms.6 Labelling a diatribe against a business as a “warning”

does not transform the statements into protected conduct under the

anti-SLAPP statute. See Woodhill Ventures, LLC, 283 Cal. Rptr. 3d

at 516 (where the purpose is simply to gather “‘ammunition for

another round,’ it is not in the public interest”) (citation omitted);

6 To that end, we note the following about the “warnings”:

 In response to Lind-Barnett questioning how Tender Care
could still be in business, a commentor wrote, “Hopefully
they won’t be when you get done with them,” to which
Lind-Barnett replied, “I[]hope so!”
 Lind-Barnett called other commentors to action, stating
“I have a group of folks wanting to go to court and deal
with this once and for all.”
 Lind-Barnett warned the other posters, “THEY ARE
GOING TO WISH THEY HAD NEVER TRIED TO BULLY
ME AND MY FAMILY.”

23
see also Jeppson v. Ley, 257 Cal. Rptr. 3d 921, 928–29 (Ct. App.

2020) (online post reigniting neighborhood feud didn’t become a

matter of public concern just because one neighbor purportedly felt

compelled to warn others of a second neighbor’s potential for gun

violence). If that were the case, any statement, no matter how

defamatory, would be protected by simply adding some generic

consumer “warning” in the statement.

¶ 35 In sum, the vast majority of Lind-Barnett’s and Davis’s

statements cannot be said to involve a “public issue” or “issue of

public interest” because they weren’t directed at “seek[ing] public

discussion of anything”; they appeared, instead, to be aimed at

“whip[ping] up a crowd for vengeful retribution.” Woodhill Ventures,

LLC, 283 Cal. Rptr. 3d at 513.

¶ 36 Focusing, as we must, “on ‘the specific nature of the speech,’

rather than on any ‘generalities that might be abstracted from it,’”

FilmOn.com, 439 P.3d at 1167 (quoting Commonwealth Energy Corp.

v. Investor Data Exch., Inc., 1 Cal. Rptr. 3d 390, 395 (Ct. App.

2003)), we conclude that the core of defendants’ conduct does not

rest on protected speech and, thus, is not protected under the anti-

SLAPP statute. See Sacks, 2018 WL 4659509, at *8-9 (Anti-SLAPP

24
protection does not apply “any time individuals have a dispute over

a particular animal merely because the subject of animal welfare is

important to many people. The public interest aspect of the anti-

SLAPP statute applies only when the specific challenged speech is

directed at the larger public issue.”).

B. Step Two: Likelihood of Prevailing

¶ 37 Because we conclude that defendants’ speech does not fall

under the protection of the anti-SLAPP statute, there is no need for

us to additionally determine whether Tender Care can prove a

reasonable likelihood of prevailing in its defamation suit.

IV. Disposition

¶ 38 The order denying the special motion to dismiss is affirmed.

JUDGE DUNN and JUDGE HARRIS concur.

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Appendix A

These images are reproduced in their original format, with

redactions to remove other comments.

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27
28
Appendix B

These images are reproduced in their original format, with

redactions to remove personal information unrelated to this action.

29
30
31