Hoang v. Tran ( 2021 )

Filed 1/11/21; Certified for Publication 2/1/21 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
KIEU HOANG, 2d Civil No. B302608
(Super. Ct. No. 56-2018-
Plaintiff and Respondent, 00507910-CU-DF-VTA)
(Ventura County)
v.
PHONG MINH TRAN,
Defendant and Appellant.
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). (Code
Civ. Proc., § 425.16.) 1 Respondent sued appellant for defamation
and other torts. Appellant contends that the trial court
erroneously determined that he had failed to satisfy the first
prong of the anti-SLAPP statute, i.e., he had not made a
threshold showing that respondent’s action arose from protected
activity in connection with an issue of public interest. Appellant
Unless otherwise stated, all statutory references are to
1
the Code of Civil Procedure.
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
2Plaintiffs in SLAPP suits “‘typically ask for damages
which would be ruinous to the defendants.[’]” (Wilbanks v. Wolk
(2004) 121 Cal.App.4th 883, 891.)
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 Napa valley.
He “has been steadily building a reputation in the Napa Valley
wine industry with his signature Kieu Hoang [respondent’s
name] wines.”
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
3
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 Code of Federal Regulations, Title 21 and a
criminal act . . . . All of the blood-derived medical products that
my company has obtained from China do not get shipped to the
United States.” “For the Article to [falsely] state that I made my
fortune from such illegal activity, is . . . tremendously damaging
to me, both personally and professionally, including in my
business.”
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
4
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 . . . . [¶] . . . [D]uring that time period, I invested
approximately $20 million in charitable construction projects to
build 5,000 homes for the poor as well as schools and bridges in
Vietnam. [Bold omitted.] In addition, I invested approximately
$30 million in a tourist enterprise to generate income and jobs in
Vietnam’s poorest province, Tien Giang.” “I was not ‘enticed’ or
lured by acquaintances or government officials to make ill-
advised or foolish investments of $6 million which were
eventually ‘wiped out’ . . . .” “I did not retain any houses when I
left Vietnam at the end of the 2006-2010 time period.”
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
5
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 persons 3 “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.”
3The other persons are “Pham Nhat Vuong, Dr. Thanh,”
and “Cuong ‘Dollar.’” The article contains no information about
these persons.
6
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
7
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 article states, Mai
Lynh . . . recently passed away.” 4 “I believed everything in the
article was true.”
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 Code of Civil Procedure section 425.16—
known as the anti-SLAPP statute—to provide a procedural
remedy to dispose of lawsuits that are brought to chill the valid
exercise of constitutional rights.” (Rusheen v. Cohen (2006) 37
Cal.4th 1048, 1055-1056.) Section 425.16, subdivision (a)
provides that “this section shall be construed broadly” to
“encourage continued participation in matters of public
4Appellant said that “Mai Lynh” was a “nickname.” The
brother’s true name was “Hoang Huu Ly.”
8
significance” and to assure “that this participation [shall] not be
chilled through abuse of the judicial process.”
Section 425.16, subdivision (b) provides in relevant part:
“(1) A cause of action against a person arising from any act of
that person in furtherance of the person's right of . . . 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. [¶] (2) In making its
determination, the court shall consider the pleadings, and
supporting and opposing affidavits stating the facts upon which
the liability or defense is based.”
Section 425.16, subdivision (e) provides in relevant part,
“‘[A]ct in furtherance of a person’s right of . . . free speech . . .
includes: . . . (3) any . . . writing made in a place open to the
public or a public forum in connection with an issue of public
interest, or (4) any other conduct in furtherance of the exercise of
the constitutional right of . . . free speech in connection with a
public issue or an issue of public interest.” “[B]oth the third and
fourth categories of conduct that fall within section 425.16 are
subject to the limitation that the conduct must be in connection
with an issue of public interest. The Legislature intended this
requirement to have a limiting effect on the types of conduct that
come within the third and fourth categories of the statute.”
(Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132
(Weinberg).)
“‘To prevail on an anti-SLAPP motion, the movant must
first make “‘a threshold showing that the challenged cause of
action’ arises from [protected activity] in connection with a public
9
issue [the first prong].” [Citation.] Once the movant meets this
burden, the plaintiff must demonstrate “‘a probability of
prevailing on the claim [the second prong].’” [Citation.] If the
plaintiff cannot meet this burden, the trial court must strike the
cause of action. [Citation.]’” (Christian Research Institute v.
Alnor (2007) 148 Cal.App.4th 71, 80.)
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.
(Communications Decency Act, 47 U.S.C § 230 . . . .)” The court
dismissed the complaint against BBC and entered judgment in
its favor.
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
10
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
Section 425.16, subdivision (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.” Respondent contends that the trial court
abused its discretion in permitting appellant 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.”
11
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 section 425.16 motion is reviewed de novo.
[Citation.] We review the record independently to determine
whether the asserted cause of action arises from activity
protected under the statute and, if so, whether the plaintiff has
shown a probability of prevailing on the merits.” (Stewart v.
Rolling Stone LLC (2010) 181 Cal.App.4th 664, 675.)
Appellant Satisfied the First Prong of the Anti-SLAPP Statute
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.)
Section 425.16 “does not provide a definition for ‘an issue of
12
public interest,’ and it is doubtful an all-encompassing definition
could be provided. However, the statute requires that there be
some attributes of the issue which make it one of public, rather
than merely private, interest. (Weinberg, supra, 110 Cal.App.4th
at p. 1132.) “[I]n each case where it was determined that a public
issue 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].’”
(Hailstone v. Martinez (2008) 169 Cal.App.4th 728, 736-737,
italics added; see also FilmOn.com Inc. v. DoubleVerify Inc.
(2019) 7 Cal.5th 133, 145 (FilmOn.com) [“In articulating what
constitutes a matter of public interest, courts look to certain
specific considerations, such as whether the subject of the speech
or activity ‘was a person or entity in the public eye’”].)
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
13
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 announcing the breakup [with Ngoc Trinh] along
with his blatant, shameless advertisement. But then on the
evening show, upon seeing him wear flowery pants and monkey
jacket, my emotion changed from being mad to feeling sorry.”
“[H]is girlfriend was as young as his granddaughter. He
shouldn’t have announced the breakup and used it to advertise
his products.” “Prior to the news about [respondent] and Ngoc
Trinh, I hadn’t known who [respondent] was. I’ve seen Ngoc
Trinh’s info because tabloids usually lifted her skirts up.”
“Previously, no one knew who [respondent] was; after getting
involved with Ngoc Trinh, the queen of underwear, his fame is
rocketing up. Even during the reception of [Ngoc Trinh] visiting
his family, he didn’t forget to advertise his 5 bottles of wine.” “I
don’t pay attention to who [respondent] is when he’s getting
famous with hot girls, models, being a playboy, and showing off
wealth.” “I think [respondent] does good PR for himself because
everybody knows him.” “[W]hen the famous people want to
increase their sphere of influence or promote their images they
use the media. In this case, [respondent] uses scandal, marrying
14
a young wife and divorcing in a short period of time and then
advertising his company products! Just like Trump’s
participation in The Apprentice before running for WH [White
House] Presidency.” “I personally don’t understand why this
newspaper, that station keep running news all day about
[respondent] and Ngoc Trinh? . . . [T]he media wastes a lot of ink
and paper painting them. I want to stop following the news
websites discussing this unworthy stuff of the stars.”
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
15
[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 section 425.16, subdivisions (e)(3)
and (e)(4). (See Traditional Cat Assn., Inc. v. Gilbreath (2004)
5 Some of the comments to appellant’s article vehemently
disagreed with him: “This article is based on a unique example of
a particular person to bad mouth the entire regime; more
broadly, to defame the dignity of millions of people living under
that regime. It’s an inciting, disparaging article.” “[Respondent]
makes money in the field of blood banks, which requires
advanced, modern technology. How can you say that he’s created
wealth by petty cunning of merchants? The article displays
immaturity and accusation.” “Everything is being blamed on
communism. Look at yourself first. You don’t behave well but
still blame on the regime. The author should have been
objective.” “I think BBC should remove this article right now. . . .
Clearly, the right of free speech is being exploited to overthrow
the government.”
16
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 him in the prior BBC proceeding.
Collateral estoppel, also known as issue or claim preclusion, “‘is
one aspect of the broader doctrine of res judicata. [Citation.]
“Where res judicata operates to prevent relitigation of a cause
of action once adjudicated, collateral estoppel operates . . . to
obviate the need to relitigate issues already adjudicated in the
first action. [Citation.] The purposes of the doctrine are said to
be ‘to promote judicial economy by minimizing repetitive
litigation, to prevent inconsistent judgments which undermine
17
the integrity of the judicial system, [and] to protect against
vexatious litigation.’”’ [Citation.] [¶] ‘“Traditionally, collateral
estoppel has been found to bar relitigation of an issue decided at
a previous proceeding ‘if (1) the issue necessarily decided at the
previous [proceeding] is identical to the one which is sought to be
relitigated; (2) the previous [proceeding] resulted in a final
judgment on the merits; and (3) the party against whom
collateral estoppel is asserted was a party or in privity with a
party at the prior [proceeding].’ [¶] It is implicit in this three-
prong test that only issues actually litigated in the initial action
may be precluded from the second proceeding under the collateral
estoppel doctrine. . . . An issue is actually litigated ‘[w]hen [it] is
properly raised, by the pleadings or otherwise, and is submitted
for determination, and is determined . . . .’”’ [Citation.] Courts
also consider whether the party to be estopped had a ‘full and fair
opportunity’ to litigate the issue.” (Gottlieb v. Kest (2006) 141
Cal.App.4th 110, 147-148 (Gottlieb).) Moreover, the
determination of the litigated issue must have been “‘essential to
the judgment.’” (People v. Sims (1982) 32 Cal.3d 468, 491, fn. 1.)
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.” (§ 425.16, subd. (e)(3).) In its ruling the trial court
declared, “Since the [BBC] defendants have satisfied their initial
burden under prong one, the burden shifts to [respondent] to
demonstrate a probability of prevailing on his claims.” The BBC
18
proceeding resulted in a final judgment on the merits. Both
appellant’s and BBC’s anti-SLAPP motions were directed against
the same party. Respondent “had a ‘full and fair opportunity’ to
litigate the [first-prong] issue[s]” in defending against BBC’s
anti-SLAPP motion. (Gottlieb, supra, 141 Cal.App.4th at p. 148.)
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 other articles. The plaintiff sued James
and Interweave for defamation. Both defendants filed anti-
SLAPP motions. Interweave’s motion was heard first. The trial
court denied Interweave’s motion, but the denial was reversed on
appeal and a final judgment on the merits was entered in favor of
Interweave. The trial court subsequently conducted a hearing on
James’s anti-SLAPP motion. It permitted the plaintiff to
introduce new evidence that had not been introduced at the prior
hearing on Interweave’s motion. Based on the new evidence, the
trial court denied James’s anti-SLAPP motion. James appealed.
The appellate court reversed. It applied the doctrine of collateral
estoppel to bar the plaintiff from relitigating issues that had been
determined in the litigation of Interweave’s anti-SLAPP motion.
The appellate court reasoned: “The purpose of collateral estoppel
is to prevent a party from repeatedly litigating an issue in order
to secure a different result. [Plaintiff] had a full and fair
opportunity to litigate the relevant issues when it opposed
Interweave’s motion and again when it opposed James’s. It was
not entitled to use our opinion [in Interweave’s appeal] as a
roadmap for curing the evidentiary deficiencies in its showing. In
19
short, we find no inequity in applying collateral estoppel to bring
this litigation to a close.” (Id. at pp. 1562-1563.)
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 injure or causes special damage.”’” (Laker,
supra, 32 Cal.App.5th at p. 763.) A published statement is
defamatory if it “exposes any person to hatred, contempt,
20
ridicule, or obloquy, or . . . causes him to be shunned or avoided,
or . . . has a tendency to injure him in his occupation.” (Civ.Code,
§ 45.)
“[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
21
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 Food and Drug Administration (FDA), and
no such license was issued to him. Furthermore, China “outlawed
the [exportation of blood] in 1998.” Respondent argues, “The
Article’s false claim that [he] smuggled blood, and made his
fortune from such illegal activity, is defamatory per se.”
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
22
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
6Comments to the article (ante, pp. 14-15) show that other
persons shared appellant’s belief that respondent had used the
23
“[A] reasonable fact finder could [not] conclude [that these]
statement[s] declare[] or impl[y] a provably false assertion of
fact.” (Franklin, supra, 116 Cal.App.4th at p. 385.) The
statements fall within the category of protected rhetorical
hyperbole. “‘“[R]hetorical hyperbole”’ [citation] or ‘loose,
figurative, or hyperbolic language’ which would ‘negate the
impression that the writer was seriously maintaining’ a
proposition that was ‘sufficiently factual to be susceptible of being
proved true or false’ is protected.” (Lam v. Ngo (2001) 91
Cal.App.4th 832, 849; see also Gilbert v. Sykes (2007) 147
Cal.App.4th 13, 27 [“‘rhetorical hyperbole,’ ‘vigorous epithet[s],’
‘lusty and imaginative expression[s] of . . . contempt,’ and
language used ‘in a loose, figurative sense’ have all been accorded
constitutional protection”]; Schaecher v. Bouffault (Va. 2015) 772
S.E.2d 589, 594 [“‘language that is insulting, offensive, or
otherwise inappropriate, but constitutes no more than
‘“rhetorical hyperbole”’ is not defamatory”].) “[N]othing in [these
statements by appellant] suggested that the author was
imparting knowledge of actual facts to the reader,” except that
appellant accurately reported that respondent had a brief love
affair with a woman young enough to be his granddaughter.
(Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154, 1177.) Appellant
was expressing his opinion that, by doing business in communist
China and Vietnam for more than 20 years, respondent had
imbibed the amoral, materialistic values of the “sickening
culture” of these countries.
(4) Billionaires such as Bill Gates and Warren Buffet have
made valuable contributions to society and “always search for
publicity generated by his affair with Ngoc Trinh to advertise his
products.
24
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”];
25
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.”
26
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, basic educational system of civilized
societies, not ‘deviant’ as the ‘sickening culture’ that has been
guiding societies in Vietnam and China.”
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
27
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
7 We need not consider appellant’s argument that a prior
ruling in an Orange County Superior Court case “is res judicata
on the issue of [respondent] being a public figure.” (Italics and
capitalization omitted.) In the Orange County case, respondent
28
“If the person defamed is a public figure, he cannot recover
unless he proves, by clear and convincing evidence [citation], 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 Assn. v. Superior
Court (1984) 37 Cal.3d 244, 256 (Reader’s Digest Assn.).)
“‘[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
sued a Vietnamese newspaper for defamation. The trial court
granted the newspaper’s anti-SLAPP motion. The court found
that respondent “is a public figure, or in the very least, a limited
purpose public figure,” so he must show that the allegedly
defamatory statements were made with actual malice.
29
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
30
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 . . . .’”
31
(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 censoring disagreeable
portrayals. Once the celebrity thrusts himself or herself forward
into the limelight, the First Amendment dictates that the right to
comment on, parody, lampoon, and make other expressive uses of
the celebrity image must be given broad scope. . . .’” (Winter v.
DC Comics (2003) 30 Cal.4th 881, 889.) “Giving broad scope to
the right of publicity has the potential of allowing a celebrity to
accomplish through the vigorous exercise of that right the
censorship of unflattering commentary that cannot be
constitutionally accomplished through defamation actions.”
(Comedy III Productions, supra, 25 Cal.4th at p. 398.) “What the
right of publicity holder possesses is . . . a right to prevent others
from misappropriating the economic value generated by the
celebrity’s fame through the merchandising of the ‘name, voice,
signature, photograph, or likeness’ of the celebrity.” (Id. at
p. 403.) In writing the article, appellant did not misappropriate
the economic value of respondent’s fame.
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
32
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.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
33
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.
Filed 2/1/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
KIEU HOANG, 2d Crim. No. B302608
(Super. Ct. No. 56-2018-
Plaintiff and Respondent, 00507910-CU-DF-VTA)
(Ventura County)
v.
ORDER CERTIFYING
PHONG MINH TRAN, OPINION FOR PUBLICATION
[NO CHANGE IN
Defendant and Appellant. JUDGMENT]
THE COURT:
The opinion in the above-entitled matter filed on January
11, 2021, was not certified for publication in the Official Reports.
For good cause it now appears that the opinion should be
published in the Official Reports and it is so ordered.
GILBERT, P.J. YEGAN, J. PERREN, J.