Emotional Distress: Consumer Review Websites

Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 117 Cal.Rptr.3d 747

A man who was upset over the treatment his son had received from a pediatric dentist posted a number of criticisms of the dentist on Yelp.com, a website which posts consumer reviews of a variety of businesses. The dentist filed suit against the man, asserting causes of action for libel per se and intentional infliction of emotional distress, contending that the defendant’s comments falsely implied the dentist had not warned about mercury in a silver amalgam, that she had misdiagnosed the son’s case, and that she had improperly used a general anesthetic. The postings also included, “I wish there were a “0” star [] rating. Avoid her like a disease!”

When the defendant filed a motion to dismiss the action as a strategic lawsuit against public participation under the Anti-SLAPP statute (C.C.P. 425.16) the trial court denied the motion, finding that although the action arose from protected speech, the plaintiff had established a probability of success on the merits. The court of appeal held that the trial court had properly denied the motion as to the libel cause of action, but found that the causes of action for emotional distress should have been dismissed, in that the plaintiff’s response to the posting was not sufficiently severe or serious:

“Given Wong’s evidence, a jury reasonably could find that the implied assertion that to make her job easier and quicker, Wong put defendant’s son under general anesthesia to fill his cavities, exposed the boy’s nervous system to potential harm and harmed him was false and defamatory. Again, defendants’ showing does not conclusively negate or preclude such findings. Our discussion of Wong’s burden leads us to find that she made a prima facie showing of probable success on her cause of action for libel. Thus, the court properly denied the anti-SLAPP motion as it applied to that claim.
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Wong alleged in her complaint that the posting caused her to suffer “severe emotional damage.” However, in her declaration, she stated only that the review “was very emotionally upsetting to me, and has caused me to lose sleep, have stomach upset and generalized anxiety.”

This minimal showing does not reflect emotional distress that was any more severe, lasting, or enduring than that shown in connection with the summary judgment motion in Hughes, and we reach the same conclusion reached by our Supreme Court. Wong’s alleged emotional reaction to being professionally criticized in a Yelp review, however unjustified or defamatory that criticism might have been, does not constitute the sort of severe emotional distress of such lasting and enduring quality that no reasonable person should be expected to endure. This is especially so because Jing later modified the review on Yelp to delete the allegedly defamatory remarks.
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Accordingly, we again find that Wong’s showing does not reflect the sort of serious emotional distress with which a reasonable, normally constituted person would be unable to cope.”