Nguyen v. KSJX-AM 1500

Filed 4/17/09 Nguyen v. KSJX-AM 1500 CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Plaintiff Tam Nguyen alleged in his complaint that KSJX-AM 1500 Radio (KSJX), Multicultural Radio Broadcasting, Inc. (Multicultural Radio), Tron Dinh Do, Vien Thao Media, Inc., and Tung Thanh Vo had defamed him. After the trial court denied their special motion to strike the complaint as a Strategic Lawsuit Against Public Participation (SLAPP) within the meaning of Code of Civil Procedure section 425.16 (the anti-SLAPP statute),[1] KSJX and Multicultural Radio (defendants) filed a timely appeal.[2] We conclude that the trial court erred in finding that defendants were not engaged in protected activity when they broadcast Dos statements. After a defendant bringing an anti-SLAPP motion makes the initial showing that the lawsuit arises from protected speech as defined in section 425.16, the burden shifts to the plaintiff to show a probability of prevailing on the merits of the claim. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76 (Cotati).) Since the trial court did not reach this issue, we will remand the matter to allow the trial court to make this determination. Thus, we reverse the order denying the special motion to strike.

I. Background

Nguyen is an attorney and the publisher of SaigonUSA News, a biweekly newspaper for Vietnamese American readers in the San Jose area. He has lived in this area since 1979, and is actively involved in community issues and activities. He has served on the San Jose Mayors Committee on Minority Affairs and the San Jose Library Commission as well as on the boards of directors for numerous charitable organizations.

Tron Dinh Do is the owner of Vien Thao Media, Inc., a California corporation. He is also a businessman, publisher, editor, television and radio commentator, entertainment promoter and charity fund-raising organizer and [has] been active and well-known in the local Vietnamese community of Santa Clara County for more than twenty years.

In August 2007, Do attended a banquet in San Jose to honor the Special Forces Veterans Association. Instead of taking the art work for which he submitted the winning bid at this event, Do offered $3,000 to the oldest living soldier who was incarcerated for the longest time and gave the art work to the committee that organized the event. According to Nguyens declaration, Do is also notoriously known in the Vietnamese community as a turn-coat who [has] suspiciously close tie[s] with the Vietnamese communist regime. His radio programs tend to criticize the Vietnamese community who are opposed to the communists. The radios also broadcast news and commentaries promoting the communist government. For these reasons, a large majority of community members become suspicious of Tron and his activities. . . . They have openly accused Tron Do a traitor and a charity fraud; [] . . . [] When Tron Do gave the association $3,000, many guests became upset because they were suspicious of Trons motive. Some of them left the party in protest. In the next few days, numerous comments were made about the incident that Special Forces Veteran Association accepted money from [] Do. Many felt that the former soldiers should not accept money from the traitor who has close ties with the communist enemy; [] Many people broadcast their angry emails on the internet. Some of them were sent to SaigonUSA News. Two of the comments . . . were published in SaigonUSA Newspaper on August 17, 2007. The opinions in these two comments are that the association shouldnt have received the money from the traitor Tron Do because of his close ties with the communists and the association was not in such a dire need for that sum of money anyway.

According to Dos declaration, the SaigonUSA article depicted Do as a communist, a Vietnamese traitor, and a propagandist for the Vietnamese communist government. [Nguyen] also accused [Do] of channeling money to Cambodia by collecting money from Vietnamese overseas and attending a banquet in honor of the Vietnamese President, Nguyen Minh Triet. Dos declaration also stated: To those of us from Vietnam who fought against communism and came to the United States, often at great personal peril, to escape the tyrannical rule of the communist regime in Vietnam, the present government is regarded with contempt and disdain. I never would attend any event honoring President Triet because of my personal antipathy for him. My beliefs are shared by the majority of my fellow Vietnamese Americans. As evidence of this, in August 2007, when President Triet traveled to Southern California and attended a dinner with Vietnamese business owners in Orange County, home of Little Saigon, where over 500,000 Vietnamese Americans reside, a vehement protest erupted almost immediately. The protest was covered in the media throughout the Vietnamese United States community. In response to the article, Do broadcast over the radio and television a warning for Mr. Nguyen to halt his untrue allegations.

When Nguyen continued with his statements, Do directed his staff to broadcast over KSJX an article that he wrote. KSJX is one of three radio stations in the San Francisco Bay area owned by Multicultural Radio, a New Jersey corporation. Do also directed that the article be broadcast over Vien Thao Media television.

Nguyens declaration states that Do made the following false statements on his radio program: (1) It is true that few months ago you went to Vietnam to take order from the Counter Intelligence Agency from Ha Noi to destroy our community; (2) The Vien Thao Media system will expose your true face [to] the public. Everyday Saigon Radio will broadcast opinions from the listeners regarding your wrongful actions. If necessary, we will use the law and other demonstrations at your office located at 545 E. Saint John Street, San Jose, CA 95112, which is very likely; (3) This boy Tam may be suffering from sexual and psychological disorder; (4) Council woman Madison Nguyen had worked hard with the city to support the naming of Story Road as Vietnamese Business District. This event is such a wonderful and proud moment for the Vietnamese community but you used your newspaper SaigonUSA to curse at her and defame her as communist, and traitor; (5) Mr. Tu Trieu Thanh is only a simply businessman. Its not clear whether Mr. Tu did offend you in any way or he did not advertise on your newspaper then you defamed him; (6) Mr. Tam! How cruel you are when the Hung Ly family was languishing in prison but you viciously set out to destroy them; (7) Some restaurants even say, This restaurant will respectfully welcome everyone including the homeless, except Tam Nguyen; (8) Mr. Tam! Your mouth always speak of gratitude. You even embrace my father and said that You must be so proud to have such a good son like Mr. Tron Van Do, and I would like to be a son to you. But you then turned around and curse at my father so badly. Oh my poor father. He would take the bus to downtown San Jose just to chat with you; (9) And about Mr. Nhon Huu Do, chairman of the Special Forces Veterans and also a friend from the same Quang Nam province with you and you even once called him _____[.] But you also accused him of such and such crime. A close friend of him even said God damn him! Even a prostitute all over the world still spare a little corner space. How dare he curse at the good old Mr. Nhon ; (10) You even want to become a musician, but I am afraid that your red music is not appropriate for everyone; (11) You want to become the leader in the community[.] Isnt it you who said that All those chairmen of community organizations are under my order. They do what I say. I tell them to demonstrate and they would go and demonstrate. I tell them to curse at someone and they shall curse. When saying you, you are so sick and insolent. You wanted to become the chairman of the Northern California Media Association. Nobody cares for that title. If you want, we in the media would give it to you for free, but you lack character to qualify; (12) Mr. Tam Nguyen! You enjoy using the word traitor? I think this word should be for you. Poor reporter Du Phong who works for you. In the party of the Sac Trang association last week, some senior officers has teased Du Phong why you still work for the boy Tam the traitor ; (13) You humbled yourself and whimpered Dear Sir, Yes Sir with Vietnamese Communist. Your picture taken with former Prime Minister Vo Van Kiet looks so miserable. Leader Tam Nguyen looks like a beggar, how shameful; (14) Mr. Tam! You went to Vietnam and made boastful announcements. It is true that you have been recommended by Mr. Dung, the current vice minister of counter-intelligence agency in Hanoi to work with the communist department of justice to make laws punishing the reactionary Vietkieus ; (15) How many times Mr. Truong Thanh, the First Deputy of the Vietnamese Communist Embassy in New York came to your office and held meetings on how to fight the Vietkieus? The picture taken of you is so fresh; and (16) Mr. Tam! In your office in Vietnam and in your house, you display the photo you took with prime minister Vo Van Kiet together with the Ho Chi Minh portrait so you could show off with people.[3] According to Nguyen, the statements are a personal attack on him and do not involve any issues of public interest.

Do broadcast these statements on KSJX more than 20 times during one week in August 2007 to an audience of 200,000 in the Vietnamese community in San Jose. The broadcasts were about 45 seconds. Do also ordered the entire transcript of the radio broadcast to be published on August 23, 2007, by Tin Viet News. Tin Viet News, which is owned and operated by Thu Thi Tran and Tan Van Nguyen, is a weekly newspaper that is published in San Jose.

On October 26, 2007, Nguyen filed a complaint for defamation in which he sought compensatory and punitive damages in the amount of $20 million. Nguyen alleged that the defamatory statements severely damaged his reputation.

On December 17, 2007, KSJX and Multicultural Radio brought a demurrer and a special motion to strike.[4] They argued that the lawsuit arose from activity protected under section 425.16, subdivision (e)(3) and (4), because Dos article was made in a public forum in connection with an issue of public interest. The trial court denied the motion. The trial court reasoned that the present case was distinguishable from Lam v. Ngo (2001) 91 Cal.App.4th 832, because the alleged defamatory statements broadcast by defendants were not related to the alleged controversy about the statements that Tam Nguyen published in SaigonUSA on August 17, 2007. Instead, they were related to an entirely different matter, namely the activities and character of Tam Nguyen. The vast majority of the statements related to things that Tam Nguyen had done months or years ago. The clear thrust of the statements was a personal attack on the character of Tam Nguyen based upon old controversies, rather than an ongoing controversy. In these circumstances, the Court concludes that defendants failed to meet their initial burden of showing that this action arises from protected activity, as that term is defined in the anti-SLAPP statute.

II. Discussion

Appellants contend that the trial court erred in concluding that the present action does not arise from protected activity within the meaning of section 425.16. We agree.

In enacting section 425.16, the Legislature found that [i]t is in the public interest to encourage continued participation in matters of public significance, and . . . this participation should not be chilled through abuse of the judicial process. ( 425.16, subd. (a).) Section 425.16, subdivision (b)(1) states: [a] cause of action against a person arising from any act of that person in furtherance of the persons right of petition or free speech under the United States or 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. The Legislature has also mandated that section 425.16 shall be construed broadly. ( 425.16, subd. (a).)

The anti-SLAPP statute provides a means for the trial court to evaluate the merits of a possible SLAPP using a summary judgment-like procedure at an early stage of the litigation (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192), thereby providing a defendant with the opportunity to limit the costs of litigation. (Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 195.) The trial court must apply a two-part test in ruling on a motion to strike under section 425.16. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. (Cotati, supra, 29 Cal.4th 69, 76, quoting 425.16, subd. (b)(1).) As relevant here, the statutory definition of protected activity includes 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. ( 425.16, subd. (e)(3).) If the court finds such a showing has been made, it then must consider whether the plaintiff has demonstrated a probability of prevailing on the claim. (Cotati, at p. 76.) In making its determination on the motion, the trial court considers the pleadings and the supporting and opposing declarations and affidavits stating the facts upon which liability is based. (Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907.) This court conducts de novo review in which we apply the same process as the trial court. (Carver v. Bonds (2005) 135 Cal.App.4th 328, 342.)

Here, appellants established that the Dos statements on public radio were made in a public forum. (See Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 807.) At issue is whether these statements were made in connection with an issue of public interest. ( 425.16, subd. (e)(3).)

The definition of public interest within the meaning of the anti-SLAPP statute has been broadly construed to include not only governmental matters, but also private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity. [Citations.] (Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App. 4th 468, 479.) Though courts have not defined the precise boundaries of a public issue, the definition encompasses statements [that] 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]. (Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 924.)

In Du Charme v. International Broth. of Elec. Workers, Local 45 (2003) 110 Cal.App.4th 107, the plaintiff was terminated from his position with the defendant. (Id. at p. 110.) He then brought an action alleging, among other things, that the defendant had made defamatory statements about his termination on its Web site. (Ibid.) The reviewing court held that in order to satisfy the public issue/issue of public interest requirement of section 425.16, subdivision (e)(3) and (4) of the anti-SLAPP statute, in cases where the issue is not of interest to the public at large, but rather to a limited, but definable portion of the public (a private group, organization, or community), the constitutionally protected activity must, at a minimum, occur in the context of an ongoing controversy, dispute or discussion, such that it warrants protection by a statute that embodies the public policy of encouraging participation in matters of public significance. (Id. at p. 119.) Since the plaintiffs termination was no longer a topic of debate or controversy, the court concluded that the alleged defamatory statement was not entitled to section 425.16s protection. (Ibid.)

In Lam, supra, 91 Cal.App.4th 832, however, the court was presented with circumstances in which the first prong of the section 425.16 test was met. In Lam, numerous Vietnamese Americans staged demonstrations after a video store placed the North Vietnamese communist flag and a poster of Ho Chi Minh in its window. (Id., at p. 837.) When Lam, one of the plaintiffs and a member of the city council, did not support their efforts, some of the demonstrators then turned their attention to his restaurant. (Ibid.) The demonstrators, among other things, carried signs referring to Lam as a communist and a traitor and drawings with horrific images, including a coffin-like box, and the slogan Down with Communists. (Id. at p. 838.) Lam, Lams wife, and the restaurant filed an action for interference with economic advantage, infliction of emotional distress, trespass, and nuisance against the demonstrators and the individual who had organized the demonstrations. (Id. at pp. 838-839.) After concluding that the special motion to strike had been filed in a timely manner, the reviewing court then considered the merits of the motion. The court stated: [T]here is no doubt that the protests directed at a public figure (Lam) based on his stand concerning an issue of public significance in his constituency (whether a local video store should be displaying the flag of the North Vietnamese communists) satisfies the first prong, and Lam makes no argument to the contrary. (Id. at p. 845.)

In contrast to the statements made in Du Charme and consistent with those made in Lam, here the statements were part of an ongoing debate or controversy. Both Nguyen and Do are prominent members of the Vietnamese American community in the San Jose area. Both men are also actively involved in the media for this community; Nguyen is a newspaper publisher and Do is a publisher, editor, and a television and radio commentator. In August 2007, a controversy arose over Dos ties to communism during which [m]any people broadcast their angry emails on the internet. The controversy was reported in Nguyens newspaper. Within days, Do made several statements about Nguyens ties to communism.[5] Though the issue of which members of the Vietnamese American community in the San Jose area are or have been affiliated with communism may not be of particular interest to the public at large, it has immense significance in the Vietnamese American community, particularly since the alleged defamatory statements refer to an individual who is prominent in Vietnamese American media. Defendants broadcasts occurred in the context of this ongoing controversy, and the protection of these statements would further the public interest in encouraging participation in the discussion of the political affiliation of those involved in the media. Since the statements were made in connection with an issue of public interest ( 425.16, subd. (e)(3)), defendants carried their burden of showing that Nguyens lawsuit arose from protected speech as defined in section 425.16.

Plaintiffs reliance on Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal.4th 1106 (Briggs) is misplaced. In Briggs, the defendants statements were made in official proceedings or in connection with issues under consideration or review by executive or judicial bodies or proceedings. (Id. at p. 1114.) Thus, the California Supreme Court concluded that the statements fell within the scope of section 425.16, subd. (e)(1) and (2). At issue in the present case, however, is the applicability of subdivision (e)(3).

In the instant case, the trial court did not consider the second prong of the test. The trial court also did not rule on defendants objections to the translation of the article. Since a translation of the statements by a certified translator was not submitted to the trial court, the state of the record is somewhat uncertain. Under these circumstances, we will remand the matter to the trial court.

III. Disposition

The order denying defendants special motion to strike is reversed and the matter is remanded to the trial court so that the court may determine whether Nguyen can meet his burden of showing a probability of prevailing on his lawsuit. Costs on appeal are awarded to defendants.

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Mihara, J.

WE CONCUR:

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Premo, Acting P. J.

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McAdams, J.

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[1] All further statutory references are to the Code of Civil Procedure unless otherwise stated.

[2] Tron Dinh Do, Vien Thao Media, Inc., and Tung Thanh Vo have not appealed from their order denying their special motion to strike the complaint.

[3] Nguyen attached to his complaint a copy of the article in Vietnamese and his English translation. Dos declaration states that the translation is not accurate in all respects. Since neither party submitted a translation by a court-certified translator to the trial court (Cal. Rules of Court, rule 3.1110(g); Gov. Code, 68561, 68562, 68566), this court will rely on the quotations from the article in Nguyens declaration for its analysis.

[4] On December 10, 2007, Do, Vien Thao Media, Inc., and Tung Thanh Vo brought a demurrer and special motion to strike.

[5] Though some of the statements do not refer to Nguyens relationship to communism, the majority of them do.