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 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.
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

¶ 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.”
2

¶ 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. 
3

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 —

3 Dr. 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. 
4

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 
5

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, 
6

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.
7

¶ 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 
8

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!! 
9

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.
10

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, 
11

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.

7 There 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.
12

¶ 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 antiSLAPP 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).
13

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 
14

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 
15

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.
16

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. 
17

¶ 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 
18

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). 
19

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 postsurgery; 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. 
20

¶ 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. 
21

¶ 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 
22

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. 
23

¶ 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. 
24

¶ 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 
25

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))). 
26

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.
27

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 
28

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 
29

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. 
30

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,
31

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.
32

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 
33

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 
34

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.