Judge: Richard Y. Lee, Case: 30-2022-01257749, Date: 2022-09-29 Tentative Ruling
MOTION TO STRIKE
Defendants Ngo Ky (“KY”) and Nam Quan (“QUAN”) (collectively “Defendants”) seek to strike Plaintiff Rose Bui’s (“Plaintiff” or “ROSE”) entire Complaint, 1st through 3rd causes of action for defamation, intentional infliction of emotional distress, and negligent infliction of emotional distress.
Defendants contend that Plaintiff’s Complaint arises out of constitutionally protected speech pursuant to C.C.P. section 425.16(e)(3) and/or (e)(4) because: (1) Plaintiff is a public figure because she is the wife of a Fountain Valley City Councilman, Ted Bui; (2) Ted Bui ran for the State Assembly in this year’s primary election held on June 7, 2022; and (3) the commentary by Defendants was about the political campaign and arose in the course of Plaintiff’s husband’s campaign for the State Assembly. Defendants also contend that Plaintiff cannot show a reasonable probability of prevailing on the merits of her defamation claim because she cannot show by clear and convincing evidence a provable false statement, she cannot show a statement that is not protected by the Communications Decency Act, and she cannot show the statements were made with malice. And, Plaintiff cannot show a probability of prevailing on the merits of her other causes of action because since the alleged defamatory speech is protected, Plaintiff’s remaining tort claims based on said speech, also fails.
In Opposition, Plaintiff contends she is not a public figure; that Plaintiff is also not a limited or quasi-public figure; that even if she were a limited purpose public figure, Defendants failed to establish that the statements were made in connection with a public controversy or an issue of public interest which contributed to the public debate; and that Plaintiff can show a probability of prevailing of prevailing on the merits of her defamation cause of action.
When a defendant brings an anti-SLAPP Motion, C.C.P. section 425.16 posits a two-step process for determining whether an action is a SLAPP. “First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity...‘A defendant meets this burden by demonstrating that the act underlying the plaintiff's cause fits one of the categories spelled out in section 425.16, subdivision (e)’...If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Navellier v. Sletten (2002) 29 Cal. 4th 82, 88.)
“Only a cause of action that satisfies both prongs of the anti-SLAPP statute-i.e., that arises from protected speech or petitioning and lacks even minimal merit-is a SLAPP, subject to being stricken under the statute.” (Id. at p. 89.)
First Prong Analysis – Whether Plaintiff’s Complaint Arises from Protected Conduct.
Defendants seeks to strike Plaintiff’s Complaint on the grounds the action is based on protected speech under Code of Civil Procedure Section 425.16(e)(3) or (4) – “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 “any other conduct 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.”
Whether Defendants Established that the Speech Concerned A Public Issue or An Issue of Public Interest (C.C.P. Section 425.16(e)(4)?
Defendants contend that the alleged defamatory comments are protected under subsection (e)(4) because Plaintiff is a public figure since she is the wife of a politician. In support of this contention, Defendants cite to Kapellas v. Kofman (1969) 1 Cal.3d 20 as legal authority. Kapellas, however, is procedurally and factually inapposite.
In Kapellas, the plaintiff was a candidate for city council and a newspaper publisher ran an editorial in one of his newspapers urging the electors not to vote for the plaintiff and listed various offenses by the plaintiff’s three minor children which was gathered from a city police blotter. The plaintiff brought an action on behalf of herself and her minor children asserting causes of action for libel on behalf of herself and a separate libel claim on behalf of her children and claim for invasion of her children’s privacy. (Id.) The publisher demurred, inter alia, to the cause of action for invasion of the children’s privacy on the grounds the comments concerned persons and matters of public interest. (Id.)
Kapellas did not involve an anti-SLAPP motion, did not address whether the children of a person running for public office is considered a public figure for purposes of the anti-SLAPP statute, and did not involve a defamation claim based on the comments published as to the minor children. The Kapellas court’s discussion as to the children and public interest in the children concerned arose in the context of whether they could assert a cause of action for invasion of privacy—not whether they were public figures for purposes of Code of Civil Procedure section 425.16(e)(4). (Id. at 34-38.)
Likewise, Werner v. Times-Mirror Company (1961) 193 Cal.App.2d 111, also cited by Defendants, is factually and procedurally inapposite. Werner did not involve an anti-SLAPP motion and the issue therein was whether the plaintiff, the acting city attorney of Los Angeles, could assert a cause of action for invasion of privacy for statements published by the Los Angeles Times concerning his former wife. Werner did not address whether the wife of a politician is a public figure for purposes of the anti-SLAPP statute.
Other than citing to the above legal authority, Defendants do not submit any evidence to support their contention that Plaintiff is a public figure or that there is “public interest” in Plaintiff.
Accordingly, the Court finds that Defendants failed to establish that the speech is protected pursuant to Code of Civil Procedure section 425.16(e)(3).
Whether Defendants Established that The Speech Concerned Statements Made in a Public Forum In Connection With an Issue of Public Interest (C.C.P. Section 425.16(e)(3)?
Next, Defendants contend that comments are protected pursuant to subsection (e)(4) of the anti-SLAPPP statute [involved a statement made in a public forum in connection with an issue of public interest] because “the commentary was about the political campaign and a candidate.”
“Section 425.16, subdivision (e)(4), broadly defines protected activity to include any ‘conduct 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.’ In determining whether this particular subdivision applies, ‘a court must consider the context as well the content’ of the challenged statement or activity. [Citation omitted.] ‘It 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.’” (Sandlin v. McLaughlin (2020) 50 Cal.App.5th 805, 824-825.)
“What it means to ‘contribute to the public debate’ [citation] will perhaps differ based on the state of public discourse at a given time, and the topic of contention.” (Sandlin, supra, 50 Cal.App.5th at 825.) The court is to “examine whether a defendant—through public or private speech or conduct—participated in, or furthered, the discourse that makes an issue one of public interest.” (Id.)
The term “issue of public interest” has not been defined. However, “in each case where it was determined that an issue of public interest existed, ‘the subject statements either concerned a person or entity in the public eye [citations], conduct that could directly affect a large number of people beyond the direct participants [citations] or a topic of widespread, public interest [citation].’” (Grenier v. Taylor (2015) 234 Cal.App.4th 471, 482.)
In support of their Motion, Defendants submit the following evidence by Defendant Ngo Ky (“KY”):
On or about February 13, 2022, Defendant KY was invited on Trust Media Network, a social media channel on YouTube, to discuss the political campaigns in Little Saigon from the city council race to the State race;
On said date, Defendant KY discussed Plaintiff’s husband, Ted Bui’s (“TED”) campaign, because he was concerned about TED’s lack of history and lack of public service experience prior to running for the State Assembly seat;
Defendant KY shared information about TED that he thought the public should know about prior to considering him for the State Assembly seat which came from a FaceBook posting from Mr. Tan Viet’s account (“FB Posting”);
Defendant KY viewed the FB Posting on or about February 8, 2022—a few days before he appeared on the YouTube channel—and he saw TED and Plaintiff carrying political posters for his campaign in a 2022 Lunar New Year parade (“Tet Parade”) and his opinion was that they were violating the law for campaigning in a non-profit forum since he understood the Tet Parade was organized by a non-profit organization;
On the FB Posting, Defendant KY saw photos of a man in a Vietnamese communist army official colonel uniform identified as Lan Vu’s father, Mr. Thanh Vu and the FB Posting stated that Lan Vu was TED’s wife, the Plaintiff;
Defendant KY felt that this fact would make a big difference on how the voters in the Vietnamese community would cast their votes because Vietnamese American refugees and their immigrant family members most likely do not cast votes for anyone who is affiliated in any way with the Vietnam communist organization;
Defendant KY felt the information on the FB Posting was newsworthy and of public concern;
The FB Posting also showed a video of TED and his wife wearing red clothing, yellow head dresses and dancing to “Vietnam communist music”; the current Vietnam flag is red with a yellow star in the middle; that the clothing colors in combination with the music made it hard not to question why TED and Plaintiff “would have such a message”; and the photo which he believed was Plaintiff’s father in communist army attire caused him to be suspicious of TED’s intention for running for higher office;
Defendant KY knows the Vietnamese community and they do not want any communist sympathizers or affiliates to infiltrate the democratic community;
On the February 13, 2022 show, he showed the viewers the items posted on the FB Posting and shared his suspicions of TED’s background;
Defendant KY did not mention Plaintiff or the name “ROSE BUI” at any time during the show; and
Defendant KY’s actual words via translation was a question he raised to TED “is your wife, the woman Vu Lan, the daughter of colonel Vu Thanh? Give people the answer now?”.
(See Ky Decl., ¶¶ 7-10, 13, and 14, Exh. A.)
In Opposition, Plaintiff concedes that the statements were made in a public forum but contends the statements did not involve a public issue or issue of public interest. Plaintiff further contends that Defendants failed to analyze why the comments were an issue of public interest or how commentary that Plaintiff has family members in the Communist party or are Communist supports or furthers an issue of public interest.
Here, the evidence produced by Defendants establishes that Plaintiff’s husband TED is a politician; the comments arose in the context of Plaintiff’s husband TED’s political campaign for the State Assembly; and the comments concerned his candidacy. (See KY Decl., ¶¶ 8-10, 13, 14.) “The character and qualifications of a candidate for public office constitutes a “public issue or an issue of public interest.” (Vogel v. Felice (2005) 127 Cal.App.4th 1006, 1015.) “The right to speak on political matters is the quintessential subject of our constitutional protections of the right of free speech. ‘Public discussion about the qualifications of those who hold or who wish to hold positions of public trust presents the strongest possible case for applications of the safeguards afforded by the First Amendment’.”) (Vogel, supra, 127 Cal.App.4th at 1016.)
Defendants’ evidence also supports that the comments concerned an issue of on-going public interest in the Vietnamese Community, i.e., whether or not a person running for political office on behalf of their community is a communist supporter. The comments were made by Defendant KY, a political activist in the Vietnamese community who participates in political campaigns and appears on media and social media channels, to discuss political issues in the Vietnamese American community who reside predominantly in the City of West Minister and Garden Grove; the Vietnamese community does not like to cast votes anyone who is affiliated in any way with the Vietnam communist organization; and that members of the Vietnamese community do not want any communist sympathizers or affiliates to infiltrate their democratic community. (See KY Decl., ¶¶ 2-6, 10(2) and (3).)
Accordingly, the Court finds that Defendants meet their initial burden of establishing that the Complaint arises out of protected speech pursuant to C.C.P. section 425.16(e)(3).
Second Prong - Probability of Prevailing on the Merits – Whether Plaintiff Failed to Establish that the Defamation Claim and Other Claims Are Legally Sufficient and That She Can Sustain A Favorable Judgment.
As Defendants have met their initial burden, the burden shifts to the Plaintiff to establish a “probability” of prevailing on the merits. (Navellier, supra, 29 Cal.4th at 88.) The plaintiff must show both that the complaint is legally sufficient and supported by facts to sustain a favorable judgment if the evidence submitted by the plaintiff is believed. (Id. at pp. 88-89.) The plaintiff need only establish that his or her claim has “minimal merit.” (Id. at p. 89.)
“In deciding the question of potential merit, the trial court considers the pleadings the evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim. [Citation.]” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.)
Plaintiff’s Complaint asserts causes of action for defamation, intentional infliction of emotional distress, and negligent infliction of emotional distress.
“The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage...Civil Code section 45 provides, ‘Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.’” (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1369.)
The elements of an intentional infliction of emotional distress cause of action are: “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe or extreme emotional distress; and (3) the plaintiff's injuries were actually and proximately caused by the defendant's outrageous conduct.” (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494.)
“The law of negligent infliction of emotional distress in California is typically analyzed...by reference to two ‘theories' of recovery: the ‘bystander’ theory and the ‘direct victim’ theory.” (Spates v. Dameron Hosp. Assn. (2003) 114 Cal.App.4th 208, 213.) “The bystander theory recognizes a duty in the limited class of cases where a plaintiff ‘(1) is closely related to the injury victim, (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim and, (3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness.’ [Citation omitted.] Direct victim theory involves a duty owed directly to the plaintiff ‘that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.” (Id.)
Here, Plaintiff’s Opposition contends she has admissible evidence that shows she will likely prevail on her defamation claim but fails to address the remaining claims. As such, the Court finds that Plaintiff failed to meet her burden of establishing a likelihood of prevailing on the merits of her 2nd and 3rd causes of action for intentional and negligent infliction of emotional distress.
As to the 1st cause of action for action for defamation, Plaintiff contends she can demonstrate a probability of prevailing on the merits of her claim based on the following evidence: (1) the alleged comments were published on YouTube on February 13, 2022; (2) the published facts are all false – her dad was never in the military, her dad was a civil engineer who retired in 2000, the man in the photo is not her dad, she has never participated in or was involved with or supported the Communist party, and she wore a red dress at the Tet parade as symbolic of the lunar new year and danced to Vietnamese pop music, not Communist music; (3) the comments are defamatory because communist associations or sympathies in the Vietnamese community will subject a person to hatred, contempt ridicule, and shame; (4) the comments are not privileged because they were published on YouTube and were not part of any legislative or court process; and (5) the comments have a tendency to injure or cause damages. (See Bui Del., ¶¶ 1-3.)
Defendants contend Plaintiff cannot show a provable false statement because Plaintiff is complaining that Defendant described her relative as being in the communist Vietnam military and accused her of wearing communist colors and playing communist music; that there is no way to prove what is “Communist music” or “Communist colors”; that the statements are non-actionable opinions; that, in any event, Defendants did not act with malice in making said comments; and that their commentary is non-actionable as it was a republication of an existing publication, the FB Posting, immunized by the Communications Decency Act.
(i) Whether the Comments Are Statements Are Actionable?
The sine qua non of recovery for defamation ... is the existence of a falsehood.” (Baker v. Los Angeles Herald Exam'r (1986) 42 Cal.3d 254, 259.) “The crucial question...is whether the statement at issue was a statement of fact or a statement of opinion. This is a question of law to be decided by the court.” (Baker, supra, 42 Cal.3d at 260.)
“California courts have developed a ‘totality of the circumstances’ test to determine whether an alleged defamatory statement is one of fact or of opinion. First, the language of the statement is examined. For words to be defamatory, they must be understood in a defamatory sense. [Citation omitted.] Where the language of the statement is ‘cautiously phrased in terms of apparency,” the statement is less likely to be reasonably understood as a statement of fact rather than opinion. [Citation omitted.]” (Baker, supra, 42 Cal.3d at 260-261.)
“Next, the context in which the statement was made must be considered. Since ‘a word is not a crystal, transparent and unchanged, but is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used,’ the facts surrounding the publication must also be carefully considered.” (Id. at 261.)
“This contextual analysis demands that the courts look at the nature and full content of the communication and to the knowledge and understanding of the audience to whom the publication was directed. [Citation omitted.] ‘The publication in question must be considered in its entirety; it may not be divided into segments and each portion treated as a separate unit.’ [Citation.] It must be read as a whole in order to understand its import and the effect which it was calculated to have on the reader [citations] and construed in the light of the whole scope and apparent object of the writer, considering not only the actual language used, but the sense and meaning which may have been fairly presumed to have been conveyed to those who read it.” (Id.)
Here, the Complaint alleges as follows: “On or about February 13, 2022, Defendant NAM QUAN interviewed Defendant NGO KY on his YouTube channel. During that interview Defendants said and implied that they knew the family of ROSE, that she (ROSE) was the daughter of a Commander of the Communist Party regime, that her husband's family and relatives were all communists. Defendants identified ROSE'S father as ‘Vu Thanh’, a high ranking communist leader, a Commander, and published several photos of an older man in a communist uniform, confirmed by Defendant NGO KY as ROSE'S father. Defendants further claimed that during the 2022 Tet parade, that ROSE and several friends all wore red with yellow hats, just like the communist regime's flag, and that they danced and played communist music all along Bolsa Ave. These statements are false.” (See Complaint, ¶ 5.)
Although Plaintiff does not produce any evidence of the context in which these statements were made, Defendants provide said evidence in support of their Motion. Defendants produced evidence that the comments were made during Defendant KY’s appearance on Trust Media Network’s show on or about February 13, 2022 on its social media channel on YouTube wherein the political campaigns in Little Saigon ranging from the city council race to the State Assembly race were discussed; that Defendant KY discussed Plaintiff’s husband, TED’s political campaign and his concern for his lack of history and lack of public service experience prior to running for State Assembly; that Defendant KY brought to the viewer’s attentions certain matters he had previously viewed on a FB Posting by Mr. Tan Viet; that Defendant KY showed the viewers the FB Postings picture of a man dressed in Vietnam communist army official colonel uniform who was identified as Lan Vu’s father; that the FB Posting stated that Lan Vu (aka Plaintiff) is TED’s wife; that the FB Posting also showed a video of TED and his wife wearing red clothing and yellow head dresses dancing to “Vietnam communist music”; and that red and yellow are the colors of the current Vietnam flag; and Defendant KY asked, on the channel, the question in Vietnamese which is translated “is your wife, the woman Vu Lan, the daughter of colonel Vu Thang? Give people the answer now!”; and that the question was directed to TED. (See Ky Decl., ¶¶ 6-11, 13, and 14, Exh. A.)
Given the above, the Court finds that the average viewer of the YouTube channel could have reasonably understood the alleged comments to be one of fact and the sting of the alleged comments is that Plaintiff and/or TED are communist or communist supporters. “Statements of opinion that imply a false assertion of fact are actionable.” (Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 385.) “Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact.” (Id.) Accordingly, the Court finds the statements are actionable.
(ii) Whether Plaintiff Is Required To Show Actual Malice?
Defendants contend that Plaintiff cannot show a probability of prevailing on the defamation claim because Plaintiff is required to show malice by clear and convincing evidence.
“Public officials” may not prevail in an action for libel relating to their official conduct absent proof that the statement was made with ‘actual malice.’” (Reader's Dig. Assn. v. Superior Ct. (1984) 37 Cal. 3d 244, 252–53.) “[W]hen called upon to make a determination of public figure status, courts should look for evidence of affirmative actions by which purported public figures” have thrust themselves into the forefront of particular public controversies. As is reflected in the evolution of the public figure doctrine, from Butts through Gertz, Firestone and Wolston, such a determination is often a close question which can only be resolved by considering the totality of the circumstances which comprise each individual controversy.” (Reader’s Digest, supra, 37 Cal.3d at 254-55.)
Here, it is undisputed that Plaintiff is not a politician. Plaintiff, however, is the wife of TED, a city councilman who also ran for the State Assembly. (See Vo Decl., ¶ 9; see also KY Decl., ¶¶ 7 and 8.) Defendants produce evidence that the comments arose in the context of a discussion about the political campaigns which included the State Assembly race; that Plaintiff carried political posters for TED’s campaign in the Tet parade in 2022/Lunar New Year parade; and that Plaintiff was wearing red clothing with a yellow head dress, the current colors of Vietnam’s flag. (See Ky Decl., ¶¶ 6-10.)
Based on this evidence, the Court finds that Plaintiff was a “limited purpose” public figure since she voluntarily injected herself “into a particular public controversy” -- the State Assembly election -- and thereby became a “public figure for a limited range of issues” – issues related to the election and her husband’s campaign for the State Assembly seat.
(iii) Whether the Statements Were Made With Actual Malice?
“If the person defamed is a public figure [or limited public figure], he cannot recover unless he proves, by clear and convincing evidence [citation omitted] that the libelous 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.” (Reader’s Digest, supra, 37 Cal.3d at 256.)
“Reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.’ ... [¶] The quoted language establishes a subjective test, under which the defendant's actual belief concerning the truthfulness of the publication is the crucial issue. [Citation.] This test directs attention to the ‘defendants’ attitude toward the truth or falsity of the material published ... [not] the defendant's attitude toward the plaintiff.’ [Citation.]” (Kieu Hoang v. Phong Minh Tran (2021) 60 Cal.App.5th 513, 537.)
Here, Plaintiff does not produce any evidence that the statements by Defendants were made with actual malice. As such, Plaintiff failed to meet her burden that Defendants acted with actual malice.
And, in any event, Defendants produce evidence that Defendant KY had a valid source for his information; that he had seen the information on the FB Posting; and that he had no reason to doubt the source of his information. (See Ky Decl., ¶¶ 16-18.) Defendants also produce evidence that there was legitimate reason to believe that Plaintiff’s father was in the communist military. (See Vo Decl., ¶¶ 5, 9, 11, 14 [Mr. Vo attests that Plaintiff’s father, Mr. Vu, told him that “he was an officer in the Vietnam communist government”].)
Accordingly, for all of the above, the Court finds that Plaintiff failed to meet her burden of establishing a probability that she can show by clear and convincing evidence that Defendants acted with actual malice. (See, e.g., Hoang, supra, 60 Cal.App.5th at 537-538 [finding no evidence of actual malice where party declared under penalty of perjury that he had a reliant source for the information posted].)
For all of these reasons, the Defendants’ motion is GRANTED.
Attorney’s Fees and Costs.
Code of Civil Procedure section 425.16(c)(1) provides that a defendant who prevails on a special motion to strike “shall be entitled to recover his or her attorney’s fees and costs.”
The Court GRANTS Defendants’ request for attorney’s fees and costs to be determined by noticed motion.
Moving Party is to give notice.
DEMURRER
In light of the Court’s ruling on the motion to strike, the demurrer is deemed MOOT.
Moving party to give notice.