Barrett v. Rosenthal 10/15/03 CA1/2

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: A096451

Case Date: 10/15/2003

Preview:Filed 10/15/03

CERTIFIED FOR PARTIAL PUBLICATION* IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO STEPHEN J. BARRETT et al., Plaintiffs and Appellants, v. ILENA ROSENTHAL, Defendant and Respondent. A096451 (Alameda County Super. Ct. No. 833021-5)

Stephen J. Barrett, M.D. and Terry Polevoy, M.D. appeal from the trial court's order striking their complaint for libel, libel per se and conspiracy as a strategic lawsuit against public participation under Code of Civil Procedure section 425.16 (hereafter section 425.16 or the anti-SLAPP statute). They challenge the trial court's findings that the anti-SLAPP statute applies to allegedly libelous statements respondent Ilena Rosenthal caused to be distributed on the Internet, and that appellants could not establish a probability of prevailing on their claims. They also challenge the trial court's award of attorney fees and costs to Rosenthal; its refusal to exempt their attorney from the order directing payment of Rosenthal's attorney fees and costs; and its refusal to allow appellants discovery. We shall reverse the order as it applies to appellant Polevoy and affirm it in all other respects. BACKGROUND Appellants Barrett and Polevoy are physicians primarily engaged in combating the promotion and use of "alternative" or "nonstandard" healthcare practices and products.

Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts III.B, III.C, IV, V, and VI. 1

*

Appellants have allegedly achieved national renown as consumer advocates; each maintains websites that expose "health frauds and quackery" and provide guides for consumers to make intelligent health care decisions. In their writings, appellants attack "products, services and theories that are marketed with claims that [are] false, unsubstantiated, and/or illegal," and their work has assertedly "aroused great concern among promoters of such methods," many of whom believe that destroying appellants' reputations "would increase [the promoters'] success in the marketplace." Although he is an American citizen, appellant Polevoy resides and practices medicine in Canada. Respondent Rosenthal directs the Humantics Foundation for Women, and participates in two Usenet1 "newsgroups,"2 which focus on "alternative medicine." According to appellants, Rosenthal is a particularly active distributor of information via "The Usenet has been described as a worldwide community of electronic BBSs [bulletin board servers] that is closely associated with the Internet and with the Internet community. [

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