Judge: Kevin C. Brazile, Case: 24STCV14087, Date: 2024-10-10 Tentative Ruling

Case Number: 24STCV14087    Hearing Date: October 10, 2024    Dept: 20

Tentative Ruling

Judge Kevin C. Brazile

Hearing Date:                        Thursday, October 10, 2024

Case Name:                           Garam Park v. Jun Hee Lee

Case No.:                       24STCV14087

Motion:                         Special Motion to Strike (Anti-SLAPP)

Moving Party:                         Defendant Jun Hee Lee (“Defendant”)

Responding Party:                 Plaintiff Garam Park (“Plaintiff”) 

Notice:                                   OK

Ruling:                                    Defendant’s Special Motion to Strike the Complaint is GRANTED.

Defendant to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.

BACKGROUND

         On June 5, 2024, Plaintiff filed a complaint for Slander, Libel, and Intentional Infliction of Emotional Distress against Defendant. The complaint alleges that Defendant, while acting as a co-host of a talk show, falsely stated that Plaintiff hired Defendants’ friends for a project and did not pay them for months, causing them to be unable to pay rent. 

         On August 22, 2024, Defendant filed this special motion to strike Plaintiff’s complaint pursuant to C.C.P. §425.16 (Anti-SLAPP Motion).

         On September 30, 2024, Plaintiff filed an opposition. 

DISCUSSION

Applicable Law

         CCP § 425.16(b)(1) provides “[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 California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”   

In assessing a defendant's CCP § 425.16 special motion to strike, the court must engage in a twostep process.  (Shekhter v. Financial Indem. Co. (2001) 89 Cal.App.4th 141, 150.)  First, the court must decide whether the defendant has met the threshold burden of showing that the plaintiff’s cause of action arises from the defendant’s constitutional rights or protected activity.  (Id.)  This burden may be met by showing the act which forms the basis for the plaintiff's cause of action was an act that falls within one of the four categories of conduct set forth in section 425.16(e).  If the defendant meets his initial burden, then the burden shifts to the plaintiff to establish a probability that the plaintiff will prevail on the claim—i.e., present facts which would, if proved at trial, support a judgment in the plaintiff’s favor.  (Id.at 15051.)  

In making its determination of the antiSLAPP motion, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.  (CCP § 425.16(b)(2).)  However, the court does not “weigh credibility [nor] compare the weight of the evidence. Rather, [the court] accepts as true the evidence favorable to the plaintiff and evaluates the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.”  (Flatley v. Mauro (2006) 39 Cal.4th 299, 326.) 

Application to Facts

A.   Timeliness of Motion

CCP § 425.16(f) provides that an Anti-SLAPP motion “may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper.” The purpose of this time limitation is “to permit the defendant to test the foundation of the plaintiff's action before having to devote its time, energy and resources to combating a meritless lawsuit.” (San Diegans for Open Gov’t v. Har Constr., Inc. (2015) 240 Cal.App.4th 611, 624 [internal quotation marks omitted] [quoting Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 772, 783].)

The statutory language of section 425.16(f) indicates that the court “enjoys considerable discretion” to determine whether to allow a late-filed Anti-SLAPP motion. (San Diegans for Open Gov’t, supra, 240 Cal.App.4th at 624 [quoting Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 772, 787].) But discretion has its limits: “the court must exercise this discretion consistent with the purposes of the statute and must be mindful that the 60–day deadline is the general rule.” (Id.) “In determining whether to permit a late motion, the most important consideration is whether the filing advances the anti-SLAPP statute's purpose of examining the merits of covered lawsuits in the early stages of the proceedings.” (Id.) “Other relevant factors include the length of the delay, the reasons for the late filing, and any undue prejudice to the plaintiff.” (Id.)

Here, Defendant’s motion is untimely. The complaint was served on June 18, 2024. This motion was filed on August 22, 2024, which is 65 days after service of the complaint. However, the Court exercises its discretion to allow the late-filed motion to be heard. The filing advances the statute’s purpose of examining the merits in the early stages of the proceedings as the five-day delay was minor, and the parties have submitted no other filings or motions since service of the complaint. Additionally, there appears to be no undue prejudice to Plaintiff. Thus, the Court admonishes Defendant but will hear the merits of the motion. 

B.    Timeliness of Opposition

 CCP § 1005(b) provides that “all papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days, and all reply papers at least five court days before the hearing.”

Here, Plaintiff’s opposition is untimely. Plaintiff filed their opposition on September 30, 2024. September 26, 2024 was the deadline for filing at least nine court days before the hearing set for October 10, 2024. The Court admonishes Plaintiff but will exercise its discretion to consider the Opposition.  

C.   FIRST PRONG: Protected Activity 

It is the defendant’s burden to make a threshold showing that the challenged causes of action arise from protected activity. (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1232.)  

In deciding whether the initial “arising from” requirement is met, a court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.”  (§ 425.16(b); Navellier v. Sletten (2002) 29 Cal.4th 82, 89; see also, Salma v. Capon (2008) 161 Cal.App.4th 1275, 1286 [court examines declarations in first prong analysis under CCP § 425.16; “we ... refer to Capon’s description of [his] conduct in his declaration [in support of his anti-SLAPP motion] to determine whether it was protected or unprotected activity”].)  Thus, the moving declarations in support of the motion are appropriately considered in determining this prong of the anti-SLAPP analysis. 

For a cause of action to “arise from” protected activity, “the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech.”  (City of Cotati v. Cashman(2002) 29 Cal.4th 69, 78.)  “The anti-SLAPP statute’s definitional focus is not the form of the plaintiff’s cause of action but, rather, the defendant’s activity that gives rise to his or her asserted liability-and whether that activity constitutes protected speech or petitioning.”  (Navellier, supra, 29 Cal.4th at 92.)  CCP § 425.16 applies to any claim arising from protected conduct, regardless of its label.  (Navellier, supra, 29 Cal.4th at 92.)  

The California cases establish that generally, “[a] public issue is implicated if the subject of the statement or activity underlying the claim (1) was a person or entity in the public eye; (2) could affect large numbers of people beyond the direct participants; or (3) involved a topic of widespread, public interest.” (D.C. v. R.R. (2010) 182 Cal. App. 4th 1190, 1226.) “The issue need not be ‘significant’ to be protected by the anti-SLAPP statute—it is enough that it is one in which the public takes an interest.”¿(Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1042.)¿ 

“[A] news publication is a ‘public forum’ within the meaning of the anti-SLAPP statute if it is a vehicle for discussion of public issues and it is distributed to a large and interested community.” Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146, 1161. Accord Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 476 (newsletter distributed to approximately 3,000 was public forum). “Web sites accessible to the public ... are ‘public forums' for purposes of the anti-SLAPP statute.” (Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal. App. 4th 1027, 1039.) 

Defendant moves to strike the entire complaint, or in the alternative, to strike and dismiss the claims alleged against Defendant based on defamatory statements. Defendant asserts that Plaintiff’s complaint arises from Defendant’s protected activity as the alleged defamatory statements were made “in a place open to the public or in a public forum in connection with an issue of public interest” under CCP §425.16(e)(3). (Motion, 2:3-13.) The comments giving rise to the complaint, which Defendant argues arise from a protected activity, are as follows: 

Defendant Jun Hee Lee: I got to know about this person through some connections. He also wanted to engage in performance-based entertainment business, so he hired my friends, my acquaintances to work for him. Now, I did not lose any money myself. But those who planned to perform at the time, those who were employed by Ga Ram Park... Now, these employees were my friends, as you know. But aside from bad investments or what not, not getting paid wages is a problem, like not getting reimbursed. So my friends almost got kicked out of their rentals. Now, fortunately they found new jobs, but they had real tough time for real...because of him...at the start of this year. 

Yong Suk Won (Co-host): I heard many times that people were losing tens of thousands of dollar because of that alone.

Defendant Jun Hee Lee: This is the extent of the facts as I know it. Not paying his employees. And when he did not pay for months, the [employees] could not pay their rents. As you know, here, if you get behind on rents, you get in a big trouble. 

(Lee Declaration, Exh. 1.) 

Here, the Court finds that the comments were made in a public forum and concerning an issue of public interest. Defendant made the above comments while serving as a co-host and panelist on “Culture Shock,” a news and talk show program on Radio Korea USA, Inc., a Korean-American radio broadcasting and news company. (Lee Decl., ¶ 4.) The comments were made during a discussion about whether Plaintiff’s business activities were fraudulent, with statements made by the panelists in reference to media reports and complaints by alleged victims of various fraudulent activities by Plaintiff. (Lee Decl., ¶ 5.) The “Culture Shock” talk show is a public forum because it was serving as a vehicle for discussion of public issues and was distributed to a large and interested community, as it was published to the public at large via the internet and had 2,000 views at the time of filing of Plaintiff’s complaint. (Complaint, ¶ 12.) Further, web sites accessible to the public, like Youtube, are considered public forums per Nygard. Thus, the comments were made in a public forum. 

“To come within section 425.16, a statement must not only be made in a “place open to the public or a public forum,” it must also be made “in connection with an issue of public interest.” (Nygard, 159 Cal. App. 4th at 1039.) The Court also finds that the comments were made in connection with an issue of public interest. Defendant declares that Plaintiff is the Chief Executive Officer and Director of VMS USA INC., SMS USA INC., BITBOKKI USA INC., and GRANDY ENTERTAINMENT. (Lee Decl., ¶ 3.) Defendant submits Exhibit 2, which includes multiple news articles about Plaintiff, to support its argument that the subject of discussion was an issue of public interest as reflected in various media accounts of Plaintiff’s allegedly fraudulent activities. (Motion, 12:13-22; Lee Decl., Exh. 2.) The first two news articles in Exhibit 2 were published by The Korea Times, entitled “The Korea Daily Seattle Halts Publication… Not Answering Phone Calls” from July 26, 2019, and “Another Korean American Victim Emerges in the Korea Daily Seattle Scandal” from August 3, 2019. (Lee Decl., Exh. 2.) These articles discuss allegations of Plaintiff’s fraudulent business activities, specifically that Plaintiff was facing a lawsuit for allegedly misusing customers’ credit cards and failing to pay employees as the head of the Seattle branch of the Korea Daily. (Id.) 

The third article in Exhibit 2 entitled “[Exclusive] Embarrassment for Korean Media That Heavily Promoted Event... The Organizer Was Responsible for the Closure of The Korea Daily's Seattle Branch” published by K News LA on April 15, 2024, discusses allegations of Plaintiff as CEO of Grandy Entertainment allegedly fraudulently cancelling a concert organized by Grandy. (Id.) The fourth article in Exhibit 2 entitled "Victims of Illegal Multi-Level Coin Fraud by Virtual Asset Company VMS" published by Korea Daily on April 22, 2024, discusses allegations of Plaintiff running an illegal Ponzi scheme while acting as CEO of Vehicle Mining System. (Id.) Defendant also submits Exhibit 3, a news article from the Los Angeles Times titled “’Mine and Drive’ VMS’ Groundbreaking Tech Allows Commuters to Make Bitcoin While on the Road” from December 30, 2023 which discusses Plaintiff’s multi-million-dollar distribution contract in Korea for cryptocurrency mining technology. (Lee Decl., Exh. 3.)

In Nygard, a former employee of the plaintiff made negative comments to a magazine about his work experiences and the plaintiff sued the magazine for defamation. (159 Cal. App. 4th 1027.) The court held that the statements concerned an issue of public interest because the plaintiff was a prominent Finnish businessman, and the magazine’s evidence suggested that there was a particular interest among the magazine's readership in information having to do with the plaintiff’s Bahama residence that had been the subject of much publicity in Finland, and which was the subject of the article. (Id. at 1042.) Like the plaintiff in Nygard who was a prominent businessman for which the readership’s interest arose out of prior publicity, Plaintiff here is the CEO of multiple businesses that have been the subject of various news articles discussing his international business ventures and alleged fraudulent business activities, including owing unpaid wages to employees, for which the public had a prior and continuing an interest in. (Lee Decl., Exh. 2, 3.) Defendant’s comments regarding Plaintiff’s alleged failure to timely pay his employees were related to Plaintiff’s allegedly fraudulent business practices that had been previously covered by various news media outlets. (Lee Decl., Exh. 2, 3.) Article 1 of Exhibit 2 published June 26, 2019, specifically discusses Plaintiff allegedly owing unpaid wages to former employees. (Lee Decl., Exh. 2.) This prior news coverage evidences a public interest in Plaintiff’s dealings with his employees, including his alleged failure to pay wages. Defendant’s comments regarding Plaintiff alleged failure to timely pay wages to other employees were directly related to the public’s interest in Plaintiff’s alleged business practices thus far. Further, each of the causes of action in Plaintiff’s complaint, Slander, Libel, and Intentional Infliction of Emotional Distress, arise from Defendant’s protected activity of making these comments.

Thus, Defendant’s comments were made in a public forum concerning an issue of public interest under CCP §425.16(e)(3). Therefore, Defendant has met their burden by making a threshold showing that each cause of action in Plaintiff’s complaint arises from protected activity.

D.   SECOND PRONG: Probability of Prevailing

Once a defendant has established that the antiSLAPP statute applies, the burden shifts to the plaintiff to demonstrate a “probability" of success on the merits.  (CCP §425.16(b); Equilon Enters. LLC v. Consumer Cause, Inc.(2002) 29 Cal.4th 53, 67.)  “[T]he plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.”  (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548 (internal quotations omitted).)  The evidentiary showing by the plaintiff must be made by competent and admissible evidence.  (Morrow v. Los Angeles Unified Sch. Dist. (2007) 149 Cal.App.4th 1424, 1444; see also Evans v. Unkow (1995) 38 Cal.App.4th 1490, 149798 [proof cannot be made by declaration based on information and belief]; Tuchscher Dev. Enters., Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 123638 [documents submitted without proper foundation could not be considered in determining plaintiff's probability of prevailing on its claim].) 

The trial court properly considers the evidentiary submissions of both the plaintiff and the defendant, but it may not weigh the credibility or comparative strength of the evidence and must instead simply determine whether the plaintiff's evidence would, if believed by the trier of fact, be sufficient to result in a judgment for plaintiff.  (McGarry v. Univ. of San Diego (2007) 154 Cal.App.4th 97, 10809.)  In other words, the Court does not assess credibility, and the plaintiff is not required to meet the preponderance of the evidence standard.  (Soukup v. Law Offices of Herbert Hafif(2006) 39 Cal.4th 260, 291.)  The Court accepts as true the evidence favorable to the plaintiff, who need only establish that his or her claim has “minimal merit” to avoid being stricken as a SLAPP.  (Id.)  “In addition to considering the substantive merits of the plaintiff's claims, the trial court must also consider all available defenses to the claims, including constitutional defenses.”  (No Doubt v. Activision Publishing, Inc. (2011) 192 Cal.App.4th 1018, 1026.)   

         Here, Plaintiff has failed to meet their burden. In opposition, Plaintiff merely states, “since Defendant cannot meet his burden under the first prong of the anti-SLAPP, the second prong of the anti-SLAPP does not need to be addressed.” (Opposition, 7:10-13.) Plaintiff submits no evidence and makes no arguments as to the second prong. Therefore, Plaintiff fails to meet their burden. 

Request for Judicial Notice

No requests for judicial notice were made.

Evidentiary Objections

No evidentiary objections were made. 

CONCLUSION

         Defendant’s Special Motion to Strike the Complaint is GRANTED. 

         Defendant to give notice.

         If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.