KIEU HOANG, Plaintiff and Respondent, v. PHONG MINH TRAN, Defendant and Appellant.
2d Civil No. B302608
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION SIX
January 11, 2021
Ventura County Super. Ct. No. 56-2018-00507910-CU-DF-VTA
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b).
Phong Minh Tran appeals from an order denying his special motion to strike respondent Kieu Hoang’s complaint as a strategic lawsuit against public participation (SLAPP). (
activity in connection with an issue of public interest. Appellant further contends that the trial court erroneously determined that respondent had satisfied the statute’s second prong, i.e., respondent had demonstrated a probability of prevailing on his claims. Therefore, appellant argues that the trial court should have granted his anti-SLAPP motion and struck respondent’s complaint. We agree and reverse.
Factual and Procedural Background
In May 2018 respondent filed a first amended complaint (the complaint) against appellant, BBC Global News and related entities (BBC), and Nguyen Huy. The complaint alleged three causes of action against all defendants. The first was for defamation. The second was for a violation of the common law right of publicity. It alleged that defendants’ “[d]efamatory [s]tatements . . . are calculated falsehoods . . . and . . . a cover-up or subterfuge for the unauthorized commercial appropriation of [respondent’s] name, image and identity . . . .” The third cause of action was for civil conspiracy. It alleged, “Defendants acted in concert and came to a mutual understanding . . . to accomplish a common and unlawful plan to defame [respondent] and misappropriate his name, image, likeness, and identity for their advantage . . . .” Respondent claimed that, because of appellant’s “false and defamatory statements about him,” his “estimated net worth” had decreased by approximately $1 billion. He “suffered lost business opportunities, including . . . a cancelled $6 billion . . . transaction for a sale of [his] shares of Shanghai RAAS stock.”2
The complaint stated: “[Respondent] is a remarkable success story. He was born in Vietnam. He immigrated with his family to the United States in 1975, as the last of the American troops were pulling out of the country. He began work in the U.S. as a technician, earning $1.25 per hour. By 2015, [he] was a self-made billionaire, with a net worth of $3.8 billion, ranking No. 149 on the Forbes 400 list.” Appellant cofounded and is the second largest shareholder of Shanghai RAAS, “the largest producer of human blood derived products in China and Asia.” In the United States he founded “RAAS Nutritionals LLC . . . , which is involved in the research, development and marketing of a range of nutritional aids and health products.” In addition, he founded “an internationally-based beauty company offering scientifically advanced skin care products for men and women.” The company “also offers Italian crafted luxury fashion wear and accessories.” He owns a winery and vineyards in
Respondent’s causes of action arose from an article about him that appellant had written in Vietnamese (the article). Appellant declared: “I am a filmmaker and a blogger who comments on public affairs in Vietnam. I have occasionally contributed to the BBC Vietnamese Service.” “I came to Orange County from Vietnam in 1993.”
In February 2018 appellant posted the article on Facebook. At the end of the article, appellant included three photographs of respondent. Several days later, the article and photographs were republished “on the BBC Vietnamese Facebook Page.” The complaint alleged that, “[a]s of January 2018, the BBC Vietnamese Facebook Page had millions of readers . . . and was ‘followed’ by 2,055,443 internet users.”
As an exhibit to the complaint, respondent attached an English translation of the article and 243 pages of comments to the article. The title of the article is “Hoang Kieu [respondent] and ‘A Sickening Culture.’” Respondent filed a declaration identifying the allegedly defamatory statements in the article. These statements include the following:
1. “Since the [19]90s, [respondent] has flown to Shanghai, imported blood from China, then provided it to a number of large hospitals in the U.S., and he has thereby become a ‘billionaire’.” Respondent protested, “With my Chinese partners, I founded Shanghai RAAS in 1988, which produces human albumin and human blood-derived medicinal products. [¶] . . . I have never imported blood from China into the United States or supplied blood to hospitals [there]. To do so, would have been a serious violation of the
2. “Throughout the period of more than 20 years doing business in China, during several subsequent trips to Viet Nam, [respondent] was enticed by acquaintances and government officials to invest several millions dollars (perhaps 6 million USD). His investment was eventually wiped out, he had to run back to the U.S., and vowed to never make investment in Viet Nam, only to go there for fun, although he still had some houses in Vietnam that weren’t . . . taken over.”
Respondent declared: “These statements are false. After I established my Chinese business, I returned to Vietnam between 2006 and 2010 . . . . [¶] . . .
3. Communist China and Vietnam have produced a “‘sickening culture’” where the people “have merely tried to make a lot of money, regardless of the laws, regardless of social ethical conducts, regardless of familial morality . . . . And since then ‘pettily cunning’ tricks, ‘strokes made famous,’ and ‘deceptions’ have been omnipresent.” “[Respondent] did business in such society for many years; therefore, in his eyes such things are normal, like using a girl as young as his grandchild, turning her into ‘a lover’ and then ‘saying goodbye.’ . . . [H]e used pictures and events of himself and this girl in an attempt to produce ‘crowd effects’ with the purpose of advertising his herbal products.” Respondent’s “style of ‘playing’ is . . . merely indicative of a kind of ‘sickening culture’ in those countries where he used to do business for many years and was so influenced.”
Respondent declared: “The Article . . . falsely claims that I have adopted the ‘sick culture’ of the Chinese and Vietnamese communist regimes . . . .” “I have always been an upstanding, law-abiding businessman who accumulated his wealth from decades of hard work and ingenuity, and not through illegal tricks and deceptions or communist ties.” The statements about the girl “refer to model and actress Ngoc Trinh, with whom I had a brief romantic relationship and with whom I was genuinely in love with. I did not use, exploit or attempt to use or exploit Ngoc Trinh, my relationship or our break up for publicity. Nor did I exert improper pressure on Ngoc Trinh to become romantically involved with me, or say ‘goodby’ and throw her away, to promote my products.”
4. Billionaires such as Warren Buffet and Bill Gates have used their fortunes to benefit mankind. “Besides creating hundreds of thousands of jobs in the world, they always search for long-lasting values for mankind, instead of using ‘maneuvers’ like [respondent.]” Even “El Chapo,” the notorious Mexican drug dealer, “built free schools and free hospitals for the poor.” Respondent and other named Vietnamese persons3 “are merely individuals creating wealth through ‘relations’ with government officials, enriching themselves by the so-called merchant’s ‘petty smart,’ but not getting rich by the
Respondent declared: “None of these statements are true. I . . . [have] made tens of millions of dollars in charitable investments and donations to charitable causes in Vietnam and the United States. It is extremely important to me that I continue to give back to society . . . and leave a legacy of having lived a respectable life built on hard work, generosity, and benevolence.” Respondent’s complaint alleges: “In 2015, [respondent] set a new record when he donated $1 million to Auction Napa Valley’s Fund-A-Need effort, a fundraiser to improve the lives of those who live year-round in Napa Valley. In 2017, [he] donated $5 million to flood victims in San Jose, California, and another $5 million for Hurricane Harvey flood relief in Houston, Texas.”
In response to respondent’s complaint and declaration, appellant filed a declaration explaining his purpose in writing the article: “My purpose in writing the article was to make the point [that respondent] is famous among the Vietnamese people. He is a billionaire who made good in business by doing business in China, and then in Vietnam.” In the article I “explain how [respondent] came to be rich and famous. . . . The point I was making was that the Communist system had corrupted him, as it corrupts everybody who comes in contact with it. . . . [T]he important part of the story . . . was his involvement with the Communists.” “The moral of the article is that persons who do business with Communist governments may take on the culture of those they do business with.” “[T]he theme is that repressive Communist regimes create an immoral environment where ‘the people . . . have merely tried to make a lot of money, regardless of the laws, regardless of social ethical conducts, regardless of familial morality, as long as money is being made.’ In other words, don’t do business in Communist countries.” “[M]y intent was not to gratuitously criticize [respondent], but to show the evil of the Communist regimes in China and Vietnam. . . . The purpose of [the] article[] was to express my opinion about the regimes.”
As to Ngoc Trinh, the model and actress, appellant declared: “She is a well-known figure in the Vietnamese community. At the time [respondent] had an affair with her, he was 72 and she was in her twenties. All the Vietnamese newspapers covered it.” The press in Vietnam gave “massive coverage . . . to his affair with the younger woman.”
Appellant continued: “I based much of the article on a conversation I had with a close friend, Mai Lynh, who was [respondent’s] younger brother. As
The Anti-SLAPP Statute
“A SLAPP suit—a strategic lawsuit against public participation—seeks to chill or punish a party’s exercise of constitutional rights to free speech and to petition the government for redress of grievances. [Citation.] The Legislature enacted
significance” and to assure “that this participation [shall] not be chilled through abuse of the judicial process.”
“‘To prevail on an anti-SLAPP motion, the movant must first make “‘a threshold showing that the challenged cause of action’ arises from
The Granting of BBC’s anti-SLAPP Motion and Denial of Appellant’s Motion
Appellant’s codefendant, BBC, filed an anti-SLAPP motion. In December 2018 the trial court granted the motion. The trial court expressly found that BBC had satisfied the anti-SLAPP statute’s first prong, i.e., it had made a threshold showing that respondent’s causes of action arose from protected activity in connection with an issue of public interest. It also found that respondent had failed to satisfy the second prong because he had not demonstrated a probability of prevailing on his causes of action against BBC. The court explained: “[T]he law in California, and federal law, do not allow [respondent’s] suit to proceed against the [BBC] Defendants who are not authors of the offending publication. . . . [T]here is a unique federal rule applicable to the internet which immunizes the re-publication of offending publications in public internet forums. (
After the trial court had granted BBC’s anti-SLAPP motion, appellant filed his own anti-SLAPP motion. Appellant noted, “[T]he court has already granted an anti-SLAPP motion in favor of the BBC defendants on grounds that are applicable to [his motion].” The trial court ruled that appellant had failed to satisfy the first prong of the anti-SLAPP statute. The court rejected his claim that its ruling in the BBC proceeding collaterally estopped respondent from relitigating the first prong. Even if appellant had satisfied the first prong, the trial court ruled that respondent had met his burden under the second prong by demonstrating a probability of prevailing on his causes of action against appellant. The trial court therefore denied appellant’s anti-SLAPP motion.
Trial Court’s Alleged Abuse of Discretion in Granting Appellant’s Motion to File a Late Anti-SLAPP Motion
“A trial court’s ruling on an application to file a late anti-SLAPP motion is reviewed for an abuse of discretion.” (Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 772, 782.) “‘“The burden is on the party complaining to establish an abuse of discretion . . . .”’” (Blank v. Kirwan (1985) 39 Cal.3d 311, 331.)
Respondent argues, “Appellant waited over a year to file his anti-SLAPP motion and his only reason for the delay is that he believed, without reason, that his former co-Defendant [BBC] was representing him in this matter and thus voluntarily declined to answer or otherwise respond to the Compl[ai]nt. . . . [T]his is not a compelling reason [record citation], and Respondent has been greatly prejudiced by this unwarranted delay.”
Respondent has failed to carry his burden of showing that, in permitting the late filing, the trial court exceeded the bounds of reason. (Gonzales v. Personal Storage, Inc. (1997) 56 Cal.App.4th 464, 479 [“A trial court’s exercise of discretion is abused only when its ruling ‘“exceeds the bounds of reason”’”].) Appellant gave a plausible excuse for his delay in filing the anti-SLAPP motion. He declared that, upon receipt of the summons and complaint, he told “the Chief of Staff for the Vietnamese language Department of BBC World Service” that he “had no attorney.” Appellant believed that BBC would represent him because the Chief of Staff replied that “BBC’s attorney is working on the law suit and that they may contact me for information.” Appellant also believed that BBC “would defend me in this matter [because] I affiliated with BBC by means of submitting my written articles for BBC to post on its website since 2012. Also, I have received payments from BBC for work submitted.” Respondent has not shown that the late filing of the anti-SLAPP motion prejudiced his ability to defend against the motion.
Standard of Review for Ruling on Anti-SLAPP Motion
“A ruling on a
Respondent maintains that appellant “did not satisfy the First anti-SLAPP prong [because] the article did not concern a matter of public interest.” (Bold and capitalization omitted.)
Exercising our independent review, we conclude that the article concerned a matter of public interest because respondent was “in the public eye” in the Vietnamese community. As to the first prong, we agree with the trial court’s reasoning in its ruling granting BBC’s anti-SLAPP motion. In determining that BBC had made the requisite threshold showing of the first anti-SLAPP prong, the trial court wrote: “RAAS Shanghai [the company that respondent cofounded] is a $14.5 billion-corporation, with major influence throughout Asia. [Respondent] promotes his business in media interviews and online posts. [He] has a Facebook page where he identifies himself as a ‘public figure.’ He uses his position to influence public opinion about his business. . . . By [respondent’s] own allegations, the [article] drew thousands of comments, shares, and ‘likes.’” (Citations omitted.) The trial court noted that, in Tamkin v. CBS Broadcasting, Inc. (2011) 193 Cal.App.4th 133, 143, the appellate court had concluded that an episode of a television show concerned “an issue of public interest because the public was demonstrably interested in the creation and broadcasting of that episode, as shown by the posting of the casting synopses on various Web sites and the ratings for the episode.”
The comments to the article corroborate appellant’s declaration that respondent had gained notoriety in the Vietnamese community through media coverage of his relationship with Ngoc Trinh. Relevant comments (translated from Vietnamese to English) include: “I was kinda mad at [respondent] for
It appears that, through his enormous wealth and affair with a much younger, glamorous, and famous actress/model, respondent achieved the status of a celebrity in the Vietnamese community. “‘[T]here is a public interest which attaches to people who, by their accomplishments, mode of living, professional standing or calling, create a legitimate and widespread attention to their activities. Certainly, the accomplishments and way of life of those who have achieved a marked reputation or notoriety by appearing before the public . . . may legitimately be mentioned and discussed in print . . . .’ [Citation.] Thus, a celebrity has relinquished ‘“a part of his right of privacy to the extent that the public has a legitimate interest in his doings, affairs or character.”’” (Eastwood v. Superior Court (1983) 149 Cal.App.3d 409, 422.)
“Like the SLAPP statute itself, the question whether something is an issue of public interest must be ‘“‘construed broadly.’”’ [Citations.] An ‘“‘issue of public interest’”’ is ‘“any issue in which the public is interested.”’” (Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 464-465.) In its ruling granting BBC’s anti-SLAPP motion, the trial court correctly concluded: “The content of the publication at issue, the attention and commentary it provoked, along with [respondent’s] status, clearly justify a finding that the offending publication in this case was a matter of public interest.” (See Summit Bank v. Rogers (2012) 206 Cal.App.4th 669, 695 (Summit Bank) [“The fact that Rogers’s posts drew numerous comments, including comments vehemently disagreeing with Rogers, suggests that the [topics discussed in the posts] are matters of public discourse and are of considerable public interest”].)5
In ruling on appellant’s anti-SLAPP motion, the trial court made a complete turnabout from its position in the BBC proceeding. It denied the motion because it erroneously concluded that appellant had “not adequately evidenced that his claims against [respondent] involved a topic of widespread public interest or that the statements contributed to the public debate.” Although the article concerned an issue that was of interest only to the Vietnamese community, it concerned “an issue of public interest” within the meaning of
118 Cal.App.4th 392, 397 [“Web site statements” satisfied first prong because they “concerned matters of public interest in the cat breeding community”].)
In FilmOn.com, supra, 7 Cal.5th at p. 150, our Supreme Court concluded “that ‘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.’” In determining whether the statement contributed to the public debate, “[w]e are not concerned with the social utility of the speech at issue, or the degree to which it propelled the conversation in any particular direction; rather, we 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. at p. 151.) The numerous comments to the article show that appellant participated in and furthered the discourse that made respondent, his accumulation of wealth, and his relationship with Ngoc Trinh a subject of public interest within the Vietnamese community.
Collateral Estoppel
Respondent is collaterally estopped from claiming that the article did not concern an issue of public interest because this issue was decided against
All of the elements of collateral estoppel, as to the first prong, have been satisfied. The issue was identical in BBC’s and appellant’s anti-SLAPP motions. The issue was necessarily decided in the BBC proceeding and was essential to the judgment in BBC’s favor. The trial court could not have granted BBC’s anti-SLAPP motion unless it found that appellant’s statements in the article had been made “in connection with an issue of public interest.” (
A similar situation occurred in Direct Shopping Network, LLC v. James (2012) 206 Cal.App.4th 1551. There, James wrote allegedly defamatory articles about plaintiff. Interweave, a magazine publisher, republished one of the articles and quoted extensively from James’s
Second Prong of Anti-SLAPP Statute
“Despite the fact [appellant] . . . made a threshold showing that [respondent’s] action is one arising from statutorily protected activity, [respondent] may defeat the anti-SLAPP motion by establishing a probability of prevailing on [his] claim.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 95.) Respondent’s “second-[prong] burden is a limited one. [He] need not prove [his] case to the court [citation]; the bar sits lower, at a demonstration of ‘minimal merit’ [citation]. At this stage, ‘“[t]he court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It 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.”’” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 891.) “The plaintiff must demonstrate this probability of success with admissible evidence. [Citation.] ‘“The plaintiff may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.” [Citation.]’” (Laker v. Board of Trustees of California State University (2019) 32 Cal.App.5th 745, 768 (Laker).)
Probability of Prevailing on Cause of Action for Defamation
“‘“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
ridicule, or obloquy, or . . . causes him to be shunned or avoided, or . . . has a tendency to injure him in his occupation.” (
“[W]e must determine [(1)] whether the statements that form the basis of a defamation claim . . . expressly or impliedly assert a fact that is susceptible to being proved false; and (2) whether the language and tenor is such that it cannot ‘“reasonably [be] interpreted as stating actual facts.“‘” (Weller v. American Broadcasting Companies, Inc. (1991) 232 Cal.App.3d 991, 1001.) The federal constitution “provides protection for statements that cannot ‘reasonably [be] interpreted as stating actual facts’ about an individual. [Citation.] This provides assurance that public debate will not suffer for lack of ‘imaginative expression’ or the ‘rhetorical hyperbole’ which has traditionally added much to the discourse of our Nation.” (Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 20.)
“[T]he question is not strictly whether the published statement is fact or opinion. Rather, the dispositive question is whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact. [Citations.] . . . [S]atirical, hyperbolic, imaginative, or figurative statements are protected because ‘the context and tenor of the statements negate the impression that the author seriously is maintaining an assertion of actual fact.‘” (Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 385 (Franklin).)
The “totality of the circumstances test is used to determine whether the statement in question communicates or implies a provably false statement of fact. [Citation.] Under the totality of the circumstances test, ‘[f]irst, the language of the statement is examined. For words to be defamatory, they must be understood in a defamatory sense . . . . [¶] Next, the context in which the statement was made must be considered.‘” (Franklin, supra, 116 Cal.App.4th at p. 385.)
We analyze each of appellant‘s allegedly defamatory statements:
(1) Respondent became a billionaire by exporting blood from China to the United States. This is a false statement of fact, but it is not defamatory. Respondent asserts the statement is defamatory because it “falsely accuses [him] of illegally importing human blood from China into the United States. . . . To do so would have been a violation of the Code of Federal Regulations, Title 21, and a criminal act . . . .” Respondent notes that the importation of blood is unlawful without a “biologics license” issued by the
The article does not say or suggest that respondent‘s importation of blood from China was illegal. Appellant declared: “My article did not accuse [respondent] of criminal activity. I am not aware that any of his activity with regard to blood is a criminal activity. In fact, if it were criminal activity, that would lessen the point of my article. My point is that legitimate businesses that do business in Communist countries assist in corrupting the culture of these countries by facilitating them.”
The article “must be viewed from the perspective of the average reader of [the BBC Vietnamese Facebook Page], not . . . [an] expert [on the global blood trade] who might view [it] as conveying some special meaning. . . . ‘[T]he fact that some person might, with extra sensitive perception, understand such a [defamatory] meaning cannot compel this court to establish liability at so low a threshold.‘” (Summit Bank, supra, 206 Cal.App.4th at p. 699.) The average reader of the BBC Vietnamese Facebook Page would not know that the export of blood from China to the United States was illegal. In supplemental briefing in the trial court, appellant observed, “[T]he importation of blood is a big business. According to the website of one importer, AFC International, the United States exported $19.3 billion of total human or animal blood in 2015, and imported $12.4 billion.”
(2) Respondent was “enticed by acquaintances and government officials to invest several millions dollars (perhaps 6 million USD). His investment was eventually wiped out, he had to run back to the U.S., and vowed to never make investment in Viet Nam, only to go there for fun.” This is a false statement of fact but may not constitute actionable defamation if respondent is a public figure. (See post, pp. 28-31.)
(3) Respondent‘s character has been tarnished by the “sickening culture” of communist China and Vietnam. He therefore considers it “normal” to try “to make a lot of money, regardless of the laws, regardless of social ethical conducts, regardless of familial morality” and to engage in “‘pettily cunning’ tricks, ‘strokes made famous,’ and ‘deceptions.‘” Moreover, respondent alleges that appellant made “accusations that Respondent inappropriately ‘used’ a girl [Ngoc Trinh] as young as his grandchild in an inappropriate manner to promote his businesses.”6
(4) Billionaires such as Bill Gates and Warren Buffet have made valuable contributions to society and “always search for long-lasting values for mankind, instead of using ‘maneuvers’ like [respondent].” Respondent and other named Vietnamese persons “are merely individuals creating wealth through ‘relations’ with government officials, enriching themselves by the so-called merchant‘s ‘petty smart,’ but not getting rich by the heart of someone who knows how to contribute long-lasting values to society. That‘s why when they disappear from society, what they receive will only be the kinds of no good ‘reputation,’ such as ‘dirty old man,’ ‘pettily cunning,’ ‘crook,’ or ‘miserly.’ They will not [be] able to leave behind everlasting good reputation.” Respondent argues: “The statement that [he] made his wealth through ‘relations with government officials’ is accusing him of bribery and corruption, and is therefore defamatory per se. Calling Respondent a ‘crook,’ and ‘pettily cunning’ is also defamatory per se as it again accuses him of committing crimes.” “The gist of these statements is that Respondent is a dishonest individual who engages in criminal conduct.”
The statements in question constitute protected rhetorical hyperbole. Appellant‘s characterization of respondent “is clearly recognizable as opinion and could not reasonably be understood as a statement of literal fact.” (James v. San Jose Mercury News, Inc. (1993) 17 Cal.App.4th 1, 14; see Fletcher v. San Jose Mercury News (1989) 216 Cal.App.3d 172, 190-191 [newspaper reporter‘s statement that Fletcher “‘was a crook and a crooked politician‘” was “merely rhetorical and hyperbolic language. [The reporter] was not charging Fletcher with a specific crime. Instead, the statements were a broad, unfocused and wholly subjective comment“]; Greenbelt Co-op. Pub. Ass‘n v. Bresler (1970) 398 U.S. 6, 14 [“even the most careless reader must have perceived that the word [‘blackmail‘] was no more than rhetorical hyperbole“]; McGlothlin v. Hennelly (D.S.C. 2019) 370 F.Supp.3d 603, 618 [“Hennelly‘s statements that McGlothlin is a ‘crony capitalist,’ a ‘crook,’ and a ‘crooked owner’ are all rhetorical hyperbole. They are not capable of being proven false or even properly defined“]; Troy Group, Inc. v. Tilson (C.D. Cal. 2005) 364 F.Supp.2d 1149, 1151, 1159 [investor‘s email, “Are these guys the biggest crooks on the planet or what?” “is precisely the type of ‘broad, unfocused and wholly subjective comment’ that courts have typically regarded as opinion“]; Wood v. American Federation of Government Employees (D.D.C. 2018) 316 F.Supp.3d 475, 488 [“the Court concludes that Mr. Nelson‘s use of the words ‘gang member’ and ‘crook’ to describe Plaintiff was non-actionable hyperbole“]; Edwards v. Detroit News, Inc. (Mich.App. 2017) 910 N.W.2d 394, 400 [“This Court has previously identified several categories of speech that fall within the constitutionally protected class of opinion speech, including . . . expressions of opinion that otherwise ‘constitute no more than “rhetorical hyperbole” or “vigorous epithet,“’ such as calling someone a ‘crook’ or ‘traitor‘“].)
5. “Even drug-trafficking ‘billionaire’ like ‘El Chapo’ – making money by illicit means – still built free schools and free hospitals for the poor.” Respondent asserts: “The Article . . . attacked Respondent by falsely accusing him of being a billionaire that is comparable to the ‘drug-trafficking “billionaire” like “El Chapo” – making money by illicit means. . . .‘” “Comparing Respondent to a notorious drug smuggler further reinforces that the Article is clearly stating that he violated the law by importing blood into the United States . . . .” “[A]ffiliating Respondent to a known criminal such as El Chapo is a means to associate Respondent with criminal activity.”
The reference to El Chapo must be viewed in its context: “If the young people actually take a look at the outside world, they will see that the deeds and legacy of modern civilization ‘billionaires’ are long lasting values for society and more for the community future, from the longstanding billionaires like Warren Buffet to contemporary ones such as Bill Gates, Mark Elliot Zuckerberg, and Tim Cook. Besides creating hundreds of thousands of jobs in the world, they always search for long lasting values for mankind, instead of using ‘maneuvers’ like [respondent]. Even drug-trafficking ‘billionaire’ like ‘El Chapo’ – making money by illicit means – still built free schools and free hospitals for the poor. Their valuable legacies, regardless of doing business the ‘honest way’ or in the ‘crooked manner,’ all originate from a normal,
When viewed in its context, the reference to El Chapo is not defamatory. Appellant was not implying that respondent‘s business activities were comparable to El Chapo‘s criminal drug trafficking. Appellant was making the point that in “the outside world,” i.e., the West, even a billionaire drug lord engaged in significant charitable work because he was the product of “civilized societies” not infected by the “sickening culture” of communist China and Vietnam.
6. The article “accuse[d] Respondent of being a communist,” “one of the most serious and damaging accusations that can be made within the Vietnamese American community.” “By falsely claiming that Respondent has unreservedly adopted principles of communist ‘sick culture’ and alleging that Respondent does business with, is associated with or aligns himself with communists, the Article has the intended force and effect of painting Respondent as a corrupt communist himself.”
Appellant did not accuse respondent of being a communist or “paint” him as a communist. Appellant noted that respondent does business in communist China and Vietnam. That he does business in communist countries does not make him a communist.
Thus, there is only one statement in the article that is not protectible rhetorical hyperbole and that declares or implies a provably false, defamatory assertion of fact: respondent was “enticed by acquaintances and government officials” to invest $6 million in Vietnam, but his investment was “wiped out,” causing him “to run back to the U.S.” and to “vow[] to never make investment in Viet Nam, only to go there for fun.”
Because respondent attained celebrity status in the Vietnamese community, he was a public figure in that community. (See Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 351 [“In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts“]; Waldbaum v. Fairchild Publications, Inc. (D.C. Cir. 1980) 627 F.2d 1287, 1298, fn. 32 [“A well-known celebrity becomes a public figure“]; Id. at pp. 1294-1295 [“Fame . . . may bring close scrutiny that can lead to adverse as well as favorable comment. When someone steps into the public spotlight, or when he remains there once cast into it, he must take the bad with the good“].)7
“‘[R]eckless 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.] [¶] Although the ultimate issue is thus the good faith of the publisher, . . . a defendant cannot ‘automatically insure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the publication was indeed made in good faith. . . . [R]ecklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.‘” (Id. at pp. 256-257.)
Respondent has failed to carry his burden of establishing a probability that he can show by clear and convincing evidence that appellant acted with actual malice. Appellant declared under penalty of perjury that he had “based much of the article on a conversation I had with a close friend, Mai Lynh, who was [respondent‘s] younger brother.” “Regarding the investments in Vietnam, I relied on newspaper coverage and Mai Lynh. Mai Lynh told me his brother had lost about six million dollars in Vietnam.”
Respondent claims that Mai Lynh “was inherently untrustworthy and admittedly biased against Respondent. Appellant‘s malice is evidenced by his failure to earnestly verify the truth of his alleged defamations.” In support of his claim, respondent cites authority to the effect that, “‘[w]here the information is from a source known to be hostile to the subject against whom the material is to be used, failure to investigate the truth of the allegations solely received from this source may support a finding the publication has been made in wanton and reckless disregard of veracity.‘” (Quoting from Fisher v. Larsen (1982) 138 Cal.App.3d 627, 640.) Respondent maintains that Mai Lynh “was known to be hostile to [him].”
Appellant had no reason to believe that Mai Lynh was untrustworthy because he was biased against or hostile toward respondent. Appellant declared that Mai Lynh had asked him to provide assistance in buying equipment for a club that Mai Lynh was planning to open in Saigon. Appellant “asked Mai Lynh why he didn‘t ask his brother [respondent] for money. Mai Lynh said his brother gave him food and a house, but never money. Mai Lynh said his brother never helped him.” That respondent had given Mai Lynh food and a house, but not money, does not show that “‘there [were] obvious reasons to doubt the veracity of [Mai Lynh] or the accuracy of his reports.‘” (Reader‘s Digest Assn., supra, 37 Cal.3d at p. 257.)
Probability of Prevailing on Respondent‘s Remaining Two Causes of Action
Respondent‘s second cause of action alleges a violation of the common law right of publicity. It claims that “the Defamatory Statements contained within the Article are calculated falsehoods by Defendants and, as such, are a cover-up or subterfuge for the unauthorized commercial appropriation of [respondent‘s] name, image and identity in the Article . . . .” A violation of the common law right of publicity “has four elements: (1) [the] defendant‘s use of the plaintiff‘s identity; (2) the appropriation of plaintiff‘s name or likeness to defendant‘s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.” (Cross v. Facebook, Inc. (2017) 14 Cal.App.5th 190, 208; see Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387, 391 & fn. 2 (Comedy III Productions) [The common law right of publicity derives from the “‘[a]ppropriation, for the defendant‘s advantage, of the plaintiff‘s name or likeness‘“].)
Because the article concerned a matter of public interest and appellant did not act with actual malice, respondent cannot establish a probability of prevailing on the second cause of action. “[N]o cause of action [for common law misappropriation of a plaintiff‘s name or likeness] will lie for the ‘[p]ublication of matters in the public interest, which rests on the right of the public to know and the freedom of the press to tell it . . . .‘” (Montana v. San Jose Mercury News, Inc. (1995) 34 Cal.App.4th 790, 793.)
Furthermore, respondent‘s celebrity status in the Vietnamese community bars the cause of action. “‘[T]he right of publicity cannot, consistent with the First Amendment, be a right to control the celebrity‘s image by
Respondent‘s third cause of action alleges a civil conspiracy “to defame [him] and misappropriate his name, image, likeness, and identity for [defendants‘] advantage.” “The elements of a civil conspiracy are (1) the formation of a group of two or more persons who agreed to a common plan or design to commit a tortious act; (2) a wrongful act committed pursuant to the agreement; and (3) resulting damages.” (City of Industry v. City of Fillmore (2011) 198 Cal.App.4th 191, 211-212.) Respondent has failed to establish a probability of prevailing on the third cause of action because he has not shown that appellant and another person agreed to commit a tortious act. He also has not shown damages.
Disposition
The order denying appellant‘s anti-SLAPP, special motion to strike is reversed. The matter is remanded to the trial court with directions to grant the motion and strike respondent‘s complaint. Appellant shall recover his costs on appeal.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
Kevin G. DeNoce, Judge
Superior Court County of Ventura
Mark S. Rosen, for Defendant and Appellant.
King & Ballow and Richard S. Busch for Plaintiff and Respondent.