The opinion
Filed 5/8/24
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
ROSE BUI,
Plaintiff and Appellant, G062338
v. (Super. Ct. No. 30-2022-01257749)
NGO KY et al., OPINION
Defendants and Respondents.
Appeal from a judgment of the Superior Court of Orange County, Richard
Y. Lee, Judge. Reversed and remanded with directions.
Hoyt E. Hart II for Plaintiff and Appellant.
Mark S. Rosen for Defendants and Respondents.
* * *
After defendants made certain statements on a YouTube broadcast about
plaintiff and her family, at a time when plaintiff’s husband was running for political
* Pursuant to California Rules of Court, rule 8.1105(b) and 8.1110, this
opinion is certified for publication with the exception of parts III B through E of the
Discussion.
office, plaintiff filed a defamation action against defendants which also alleged causes of
action for intentional and negligent infliction of emotional distress. Plaintiff appeals
from the trial court’s grant of a special motion to strike her complaint pursuant to Code of
Civil Procedure section 425.16,1 the anti-SLAPP statute. She argues the court erred in
concluding she was a limited purpose public figure who needed to demonstrate actual
malice in conjunction with her defamation claim.
In the published portion of the opinion, focusing on the specific evidence
that was before the trial court, we find the evidence did not demonstrate plaintiff was
something other than a private figure for defamation purposes. That is, the totality of the
circumstances did not demonstrate she thrust herself into the vortex of a public issue in
an attempt to influence the outcome or that she assumed special prominence in the
resolution of a public debate. In the remainder of the opinion, considering the proper
standard and plaintiff’s private figure status, we conclude plaintiff demonstrated the
requisite minimal merit of her defamation claim, but she did not do so for her emotional
distress claims. Accordingly, we reverse the judgment, direct the trial court to vacate its
prior order, and direct it to enter a new order denying defendants’ anti-SLAPP motion
with respect to the defamation cause of action and granting it with respect to the
remaining causes of action.
FACTS
In May 2022, based on activities that took place earlier that year, plaintiff
Rose Bui sued defendants Nam Quan and Ngo Ky for defamation, intentional infliction
of emotional distress, and negligent infliction of emotional distress.2 The complaint
identified plaintiff as a Fountain Valley resident and a licensed attorney practicing in
Orange County. It alleged defendants were both Orange County residents and further
1 All further statutory references are to the Code of Civil Procedure, unless
otherwise indicated.
2 We refer individually to defendants by their last names, Nam and Ngo.
2
alleged Nam was “a YOUTUBE Channel personality whose videos primarily feature
Vietnamese community gossip.”
The full scope of actions allegedly engaged in by defendants were specified
in the complaint as follows: “On or about February 13, 2022, Defendant [Nam]
interviewed [Ngo] on his YouTube channel. During that interview Defendants said and
implied that they knew the family of [plaintiff], that she [(plaintiff)] was the daughter of a
Commander of the Communist Party regime, [and] that her husband’s family and
relatives were all communists. Defendants identified [plaintiff’s] father as ‘Vu Thanh’, a
high ranking communist leader, a Commander, and published several photos of an older
man in a communist uniform, confirmed by Defendant NGO KY as [plaintiff’s] father.
Defendants further claimed that during the 2022 Tet parade, that [plaintiff] and several
friends all wore red with yellow hats, just like the communist regime’s flag, and that they
danced and played communist music all along Bolsa Ave.”
According to the complaint, these statements were false. It elaborated:
“[Plaintiff’s] father was a civil engineer who retired in 2000. He never participated in the
military. The man in uniform photo does not show [plaintiff’s] father. [Plaintiff] never
participated or was involved with the Communist Party. [Plaintiff] wore a red dress,
symbolic of the Lunar new year, in the Tet parade. The music played was Vietnamese
pop music for the young people to dance to. It was not communist music.”
Defendants responded to the complaint by filing a demurrer and a special
motion to strike pursuant to the anti-SLAPP statute. The anti-SLAPP motion contended
plaintiff’s claims were based on protected activity under section 425.16, subdivisions
(e)(3) and (e)(4), because the statements allegedly made by defendants (1) were “made in
a place open to the public or a public forum in connection with an issue of public
interest,” and (2) amounted to “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.” Defendants also asserted plaintiff would be unable to demonstrate the minimal
3
merit of her claims because she was a public figure who could not prove the statements
were made with malice, she could not demonstrate provable falsity, and defendants’
activities could not be the basis of liability due to protections set forth in the
Communications Decency Act of 1996 (47 U.S.C., § 230; section 230).
To support their arguments, defendants submitted two declarations. The
first was from Ngo, who described himself as a political activist in the Orange County
Vietnamese-American community since 1984. He explained that he appears almost
weekly on Trust Media Network, a social media channel on YouTube, to discuss political
issues. When he did so on February 13, 2022, the last five minutes of the show
concerned the political campaign of Ted Bui, who was running for State Assembly at the
time. According to Ngo, he saw a Facebook post five days prior which included the
following: photos of Ted Bui and his wife carrying political posters for his campaign in a
Tet (lunar new year) parade; “[p]hotos of a man in a Vietnam communist army official
colonel uniform identified as Lan Vu’s father, Mr. Thanh Vu;” a statement that Lan Vu
was Ted Bui’s wife; and a video of Ted Bui and his wife wearing red clothing and yellow
head dresses, consistent with the colors of the Vietnamese flag, while dancing on a
Westminster street “to Vietnam communist music.”3 Ngo felt compelled to share this
information with the community because voters were determining how to cast their votes
in the upcoming election and he believed “Vietnamese-American refugees and their
immigrant family members most likely [would] not cast a vote for anyone who is
affiliated in any way with the Vietnam communist organization.” When he learned two
weeks later from the owner of the Facebook account that Thanh Vu is actually plaintiff’s
uncle, plaintiff’s father is Chung Vu, and the person had dubbed communist music into
the video depicting plaintiff and Ted Bui dancing, Ngo corrected the information in
another appearance on Trust Media Network.
3 A separate declaration clarified plaintiff also goes by the name Lan Vu, a
statement with which plaintiff appears to agree. For clarity, we refer to her as plaintiff.
4
Attached to Ngo’s declaration was a transcript of a portion of the February
2022 YouTube broadcast.4 After showing the audience a video and criticizing Ted Bui
for walking in the Tet parade, which Ngo described as a cultural event, with a campaign
banner, Ngo went on to discuss Ted Bui’s family. He stated, “We don’t know much about
his familial background, but on his wife’s side . . . His wife is . . . uh uh . . . what . . . Bui
. . . what . . . uh . . . Lan Vu is a lawyer or something, a daughter of a Communist colonel
guy, a senior member of the Communist Party of Vietnam. Colonel. It’s . . . there’s the
picture for you to see. There you see, that’s the father of Vu Lan, the wife of this guy Ted
Bui. Ted Bui’s father-in-law. His father-in-law is a Communist colonel.” Ngo proceeded
to describe Ted Bui’s supposed prior activity in France of “follow[ing] some Socialist
Communist party.” He then showed the audience an additional image stating, “There,
you see, look at that image, the father-in-law and all Communist relatives.”
Ngo continued during the broadcast: “All of a sudden, a son-in-law of a
Communist colonel is now running for election and approaching the community and so
on. Therefore, we need to unmask them, we’re saying that Ted Bui, a Fountain Valley
city councilman and now running for state assemblyman is a guy connected with the
Communists, his wife is a lawyer . . . Is that Lan Vu? Lan Vu, something Vu Lan,
daughter of a Communist colonel. Here, look at see the picture, folks. When we say
something we do have proofs [sic]. But just recently you see that during the parade he
brought along a group of people wearing red outfits, red clothes and yellow hats, like the
Communist flag, dancing and spinning on Bolsa Avenue, playing communist music and
all. So, I warn you, I caution you about Ted Bui so you can be cautious about this guy,
OK?”
The second declaration was from Michael Vo, a resident of, and city
councilmember for, Fountain Valley. He explained that he and his wife had become close
4 The original broadcast was in Vietnamese. The transcript provides both the
original Vietnamese and an English translation performed by a certified court interpreter.
5
friends with Ted Bui and plaintiff while engaged in political and business activities.
Among other things, Vo and Ted Bui assisted each other in running successful city
council campaigns. Vo described a day in 2021 when plaintiff’s father, Chung Vu,
“spontaneously shared about his past and what he achieved in Vietnam.” He conveyed
Chung Vu “shared his opinion about the Vietnam communist party” and told him “he was
an officer in the Vietnam communist government[,]” although Vo could “not recall the
exact details of when or how.”
Plaintiff opposed the anti-SLAPP motion. She contended her claims were
not subject to the anti-SLAPP statute because defendants’ comments did not concern a
public controversy or an issue of public interest. From her perspective, they were
personal attacks on her and she was not a person in the limelight simply because she was
married to a local elected official with whom she appeared in public. Plaintiff also
argued her cause of action had minimal merit, rejecting defendants’ assertion she was a
public figure who needed to prove actual malice.
The only evidence presented by plaintiff was her own three paragraph
declaration. The first paragraph was introductory. The second paragraph stated she saw
the February 2022 YouTube broadcast and identified things defendants said and did
during it. The third paragraph asserted all defendants’ comments were false, further
explaining as follows: “Communist associations or sympathies in the Vietnamese
expatriate community will subject a person so charged to hatred, contempt, ridicule, and
shame. My father was a civil engineer who retired in 2000. He never participated in the
military. The man in the photo is not my father. I have never participated in, involved
with [sic], or supported the Communist party. The red dress I wore at the TET parade
was symbolic of the lunar new year. The music played was Vietnamese pop music for the
young people to dance to. It was not Communist music.”
6
After considering the evidence and the parties’ arguments, the trial court
granted the anti-SLAPP motion.5 In its written order, the court first explained it found
defendants met their initial burden of establishing applicability of the anti-SLAPP statute.
Citing section 425.16, subdivision (e)(4), it outlined evidence demonstrating that
defendants’ alleged conduct was in connection with a public issue or an issue of public
interest — Ted Bui’s political campaign and his qualifications for public office,
particularly from the perspective of the local Vietnamese-American community. Second,
the court analyzed whether plaintiff met her burden of establishing the minimal merit of
her claims. Focusing on the defamation cause of action, with a note that plaintiff did not
address the other claims, it concluded she failed to do so. From its perspective, there was
sufficient evidence the targeted statements were false statements of fact. In contrast, it
found plaintiff failed to produce any evidence of actual malice, an element it deemed
necessary based on its conclusion she qualified as a limited purpose public figure. Part of
what led the court to conclude she was such a figure was that she carried political posters
for her husband’s campaign during the Tet parade while wearing “the current colors of
Vietnam’s flag.”
Prior to appealing, plaintiff moved the trial court to reconsider its ruling.
Her motion was based on two “new or different facts” and one “new or different law”:
(1) “[p]laintiff was not carrying any political poster for her husband’s campaign in the
2022 lunar new year Tet parade”; (2) “[r]ed and yellow, the colors worn by [p]laintiff
while walking beside her husband in the 2022 lunar new year Tet parade, are the colors of
the flag of the Republic of Vietnam, the formerly democratic South”; and (3) “[m]ere
involvement of [a] person in a matter which media deems to be of interest to [the] public
does not, in and of itself, require that such person become [a] public figure for purpose[s]
of [a] subsequent libel action.”
5 Due to its action on the anti-SLAPP motion, the court concluded
defendants’ demurrer to the complaint was moot and did not rule on it.
7
Plaintiff supported her motion with a declaration nearly identical to her
prior one, with just one additional paragraph added. It stated: “I never carried any
political posters in the 2022 Tet parade. Attached hereto are three (3) photos from the
2022 Tet parade showing that neither my husband or myself carried any political poster.
As a practicing attorney, I am very careful not to involve myself in political discussions
generally and as to my husband’s political positions specifically, and I did not do so
during the 2022 Tet parade.”
Defendants opposed the reconsideration motion, characterizing it as
seeking “a second bite at the apple.” They asserted plaintiff’s “new” evidence and law
was all available to her at the time she opposed the anti-SLAPP motion, so it could not
justify reconsideration. At the same time, they presented their own additional evidence
via a declaration from Ngo and cited one additional case they had not previously brought
to the court’s attention.
The trial court denied plaintiff’s motion. It found there was no explanation
for why plaintiff’s “new” facts were not, or could not, be presented in connection with
her opposition to defendants’ anti-SLAPP motion. It also noted the one case plaintiff
cited as “new” law was 38 years old and the court was previously aware of it because
plaintiff cited it in her anti-SLAPP opposition papers.
The trial court entered judgment in defendants’ favor. Plaintiff timely
appealed from the order granting defendants’ anti-SLAPP motion and the ensuing
judgment.6
DISCUSSION
Plaintiff contends the trial court erred in finding she was a limited purpose
6 Plaintiff’s notice of appeal also indicated she was appealing from the order
denying her reconsideration motion. However, such an order is not separately
appealable; it is reviewable on appeal from the underlying order for which she sought
reconsideration and from which she timely appealed. (§ 1008, subd. (g).)
8
public figure for defamation purposes. On this basis alone, she asks we reverse the
court’s ruling and remand the case for trial. Although, as we explain below, we agree the
evidence did not demonstrate plaintiff was a limited purpose public figure, and thus the
trial court erred in granting defendants’ motion due to plaintiff’s failure to present
evidence of actual malice, our analysis of the merits of the motion does not end there.
Taking the necessary further step to determine whether plaintiff met her burden of
showing minimal merit of her claims, we conclude she did as to the defamation claim
only.
I. Anti-SLAPP Legal Principles and Standard of Review
“The Legislature enacted section 425.16 in response to ‘a disturbing
increase in lawsuits brought primarily to chill the valid exercise of the constitutional
rights of freedom of speech and petition for the redress of grievances.’” (Rand
Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 619.) The special motion to
strike provided for in the statute is “‘intended to resolve quickly and relatively
inexpensively meritless lawsuits that threaten free speech on matters of public interest.’”
(Ibid.) By legislative direction, the statute is to “be construed broadly.” (§ 425.16, subd.
(a).)
“Litigation of an anti-SLAPP motion involves a two-step process. First,
‘the moving defendant bears the burden of establishing that the challenged allegations or
claims “aris[e] from” protected activity in which the defendant has engaged.’” (Bonni v.
St. Joseph Health System (2021) 11 Cal.5th 995, 1009 (Bonni).) The statute sets forth the
four categories of protected activity. (§ 425.16, subd. (e).)
“Second, for each claim that does arise from protected activity, the plaintiff
must show the claim has ‘at least “minimal merit.”’” (Bonni, supra, 11 Cal.5th at p.
1009.) This step of the anti-SLAPP analysis “has been described as a summary-
judgment-like procedure. [Citation.] The court determines whether ‘“the plaintiff has
stated a legally sufficient claim and made a prima facie factual showing sufficient to
9
sustain a favorable judgment.”’ [Citation.] The plaintiff ‘“may not rely solely on its
complaint, even if verified; instead, its proof must be made upon competent admissible
evidence.”’ [Citation.] The defendant may submit evidence in support of its motion.
[Citation.] However, ‘“[t]he court does not weigh evidence or resolve conflicting factual
claims.”’ [Citation.] Rather, the court ‘“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. [Citation.] ‘[C]laims with the requisite minimal merit may proceed.’”’”
(Billauer v. Escobar-Eck (2023) 88 Cal.App.5th 953, 962 (Billauer).) Conversely, “[i]f
the plaintiff cannot make this showing, the court will strike the claim.” (Bonni, at p.
1009.)
“On appeal, we review [an anti-SLAPP] motion de novo and independently
determine whether the parties have met their respective burdens.” (Cross v. Cooper
(2011) 197 Cal.App.4th 357, 371.) We employ the same two-step process used by the
trial court. (Billauer, supra, 88 Cal.App.5th at p. 962.) “‘Only a [claim] that satisfies
both prongs of the anti-SLAPP statute — i.e., that arises from protected speech or
petitioning and lacks even minimal merit — is a SLAPP, subject to being stricken under
the statute.’” (Ibid.)
II. Protected Activity
The trial court concluded defendants’ alleged actions described in the
complaint constitute activity protected by the anti-SLAPP statute. Plaintiff does not
challenge this aspect of the court’s ruling, instead she focuses her argument on the
“minimal merit” second prong. Thus, we presume defendants made the requisite first-
prong showing and similarly focus on the second prong. (See Balla v. Hall (2021) 59
Cal.App.5th 652, 671 (Balla) [appellant bears burden of affirmatively demonstrating
error even when standard of review is de novo]; see, e.g., San Diegans for Open
Government v. San Diego State University Research Foundation (2017) 13 Cal.App.5th
10
76, 106, fn. 17 [appellant waived challenge to one aspect of trial court’s ruling
concerning applicability of anti-SLAPP statute by failing to address it in opening brief].)
III. Probability of Prevailing on the Merits
The complaint alleged three causes of action against defendants:
(1) defamation; (2) intentional infliction of emotional distress; and (3) negligent infliction
of emotional distress. Plaintiff, both below and on appeal, devotes all her energy to the
defamation cause of action. By failing to provide any evidence or argument on the other
two causes of action, she failed to meet her burden of demonstrating the minimal merit of
those claims. Accordingly, we must affirm the trial court’s order in that respect and limit
our further consideration to the defamation cause of action.
Libel, which plaintiff alleges, “is a type of defamation based on written or
depicted communication.” (Balla, supra, 59 Cal.App.5th at p. 675.) “‘“‘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.’”’” (Hoang v. Tran
(2021) 60 Cal.App.5th 513, 531-532 (Hoang).) In New York Times Co. v. Sullivan (1964)
376 U.S. 254, the Supreme Court explained that federal constitutional principles require
persons who qualify as public officials or public figures to prove an additional element —
that the communication was made with actual malice. (Id. at pp. 270-280.) Private
plaintiffs, in contrast, need only show negligence.
A. Limited Purpose Public Figure
We begin with the biggest point of contention between the parties. Plaintiff
argues the trial court erred in concluding she was a limited purpose public figure who
needed to prove actual malice. She asserts she “did nothing to inject herself into any
public controversy” and did not attempt to influence the outcome of any public
discussion, controversy, or debate. Defendants disagree, arguing that “[i]n a political
campaign, everything a spouse does becomes grist for the mill.” We conclude the limited
11
record in this case was insufficient to establish plaintiff as someone other than a private
figure.
“The federal Constitution’s First Amendment, made applicable to the states
by the Fourteenth Amendment [citation], guarantees freedom of speech and of the press.
In New York Times Co. v. Sullivan . . . , the United States Supreme Court for the first time
construed these constitutional guarantees as imposing limitations on a state’s authority to
award damages for libel. Specifically, the court held that the First Amendment ‘prohibits
a public official from recovering damages for a defamatory falsehood relating to his
official conduct unless he proves that the 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.’ . . . In Curtis Publishing Co. v. Butts (1967) 388 U.S. 130, 134 . . . the high court
held that this ‘actual malice’ requirement for defamation actions brought by public
officials applied also to defamation actions brought by ‘public figures.’” (Khawar v.
Globe Internat., Inc. (1998) 19 Cal.4th 254, 262-263 (Khawar).)
The rationale for the distinction between public and private figure
defamation plaintiffs is twofold. First, public figures “invite attention and comment” as a
necessary consequence of their voluntary assumption of a prominent, persuasive, or
influential role in public affairs. (Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 344-
345 (Gertz).) Second, public officials and public figures have “greater access to the
channels of effective communication and hence have a more realistic opportunity to
counteract false statements than private individuals normally enjoy.” (Id. at p. 344.)
Over time, courts clarified there are two general types of public figure
individuals. Those who “achieve such pervasive fame or notoriety” are “public figure[s]
for all purposes and in all contexts.” (Gertz, supra, 418 U.S. at p. 351.) In contrast, those
who voluntarily inject themselves or are drawn into a particular public controversy
become public figures for a limited range of issues. (Ibid.) These latter types of
12
individuals are often referred to as limited purpose public figures. (Khawar, supra, 19
Cal.4th at p. 263.)
Three elements must be present to characterize someone as a limited
purpose public figure. (Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569, 1577.)
“First, there must be a public controversy, which means the issue was debated publicly
and had foreseeable and substantial ramifications for nonparticipants. Second, the
plaintiff must have undertaken some voluntary act through which he or she sought to
influence resolution of the public issue.” (Ibid.) In this regard, the critical focus is the
“‘nature and extent of an individual’s participation in the particular controversy giving
rise to the defamation.’” (Wolston v. Reader’s Digest Assn., Inc. (1979) 443 U.S. 157,
167 (Wolston).) Although, “[h]ypothetically, it may be possible for someone to become a
public figure through no purposeful action of [their] own,” the Supreme Court has
cautioned “the instances of truly involuntary public figures must be exceedingly rare.”
(Gertz, supra, 418 U.S. at p. 345.) “And finally, the alleged defamation must be germane
to the plaintiff’s participation in the controversy. (Ampex, at p. 1577.)
The public figure inquiry is one of law. (Khawar, supra, 19 Cal.4th at p.
264; Reader’s Digest Assn., Inc. v. Superior Court (1984) 37 Cal.3d 244, 252.) We
review the trial court’s resolution of disputed factual issues relevant to the public figure
determination for substantial evidence and the court’s conclusion on the question of
public figure status de novo. (Khawar, at p. 264.)
Defendants argue the relevant public controversy was the election and the
candidates. We agree an election in which various people are vying for public office,
including the respective qualifications of each candidate, amounts to a public debate or
controversy. (See Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146, 1164 (Annette F.)
[issue being debated publicly that has foreseeable and substantial ramifications for
nonparticipants is public controversy].) In this case, the debate specifically concerned the
2022 local State Assembly race and Ted Bui’s related campaign.
13
Where we diverge from defendants’ proffered analysis is the next step,
which concerns plaintiff’s involvement in the debate. From defendants’ perspective, “[a]
candidate does not run in isolation; in making [the decision to run for office] he or she
brings the candidate’s family into the public eye.” To the extent this is an urge for us to
find any political candidate’s family members to be limited purpose public figures simply
by reason of the candidate’s choice to run for public office, we decline to so hold.
Defendants do not point us to any authority for such a broad sweeping rule.7 Moreover,
doing so would effectively turn family members of a political candidate, including
children, into public figures through no purposeful action of their own. The Supreme
Court has cautioned that the finding of such involuntary public figure status “must be
exceedingly rare.” (Gertz, supra, 418 U.S. at p. 345.) We find no justification for the
families of political candidates, generally, to be one of those “exceedingly rare”
instances. (Ibid.; see Wolston, supra, 443 U.S. at p. 168 [private individual not
transformed into public figure by becoming involved in or associated with matter that
attracts public attention]; Khawar, supra, 19 Cal.4th at p. 265 [involuntary public figure
characterization reserved “for an individual who, despite never having voluntarily
engaged the public’s attention in an attempt to influence the outcome of a public
controversy, nonetheless has acquired such public prominence in relation to the
controversy as to permit media access sufficient to effectively counter media-published
defamatory statements”].)
7 To support their argument, defendants cite cases discussing whether
something is a matter of public concern for purposes of determining applicability of the
anti-SLAPP statute. (Sandlin v. McLaughlin (2020) 50 Cal.App.5th 805, 825; Sonoma
Media Investments, LLC v. Superior Court (2019) 34 Cal.App.5th 24, 35-36 (Sonoma);
Vogel v. Felice (2005) 127 Cal.App.4th 1006, 1015; Conroy v. Spitzer (1999) 70
Cal.App.4th 1446, 1451.) They also extensively quote a case which predated Gertz, did
not involve a public figure analysis, and which concerned an alleged invasion of privacy,
a tort which the Supreme Court in the same opinion said was distinct from libel.
(Kapellas v. Kofman (1969) 1 Cal.3d 20, 35.)
14
Heeding the Supreme Court’s direction to focus on the nature and extent of
plaintiff’s particular involvement in the 2022 election related issues (Wolston, supra, 443
U.S. at p. 167), we turn to the evidence that was before the trial court at the time it
considered the anti-SLAPP motion.8 The sole evidence on this point, which was
undisputed by plaintiff at the time, was as follows: photos posted by a third party on
Facebook depicted Ted Bui and plaintiff carrying political posters for his campaign
during a 2022 lunar new year parade, which was a cultural event organized by a
nonprofit.
The one-time carrying of a campaign poster with an unknown message by
the wife of a political candidate at a cultural event, standing alone, does not amount to the
type of voluntary injection in a public controversy at which the limited purpose public
figure jurisprudence is aimed. We take guidance from precedent which exemplifies what
it means to “thrust [oneself] into the vortex of [a] public issue,” to “assume special
prominence in the resolution of [a] public question[],” to “engage the public’s attention in
an attempt to influence [the] outcome,” and to “voluntarily inject[] [oneself] . . . into a
particular public controversy.” (Gertz, supra, 418 U.S. at pp. 351-352)
In Time, Inc. v. Firestone (1976) 424 U.S. 448 (Firestone), the United States
Supreme Court considered whether the wife of “the scion of one of America’s wealthier
industrial families” was a limited purpose public figure in relation to her divorce from her
husband. (Id. at pp. 450, 453.) Although the wife held a few press conferences “in an
attempt to satisfy inquiring reporters,” the court found she was not a public figure. (Id. at
pp. 454-455, & fn. 4.) It explained, she did not “choose to publicize issues as to the
8 We do not consider any of the evidence offered by plaintiff or defendants in
conjunction with plaintiff’s motion for reconsideration. Having reviewed such evidence,
it is clear it all would have been available at the time of the anti-SLAPP motion and
neither side explained why they failed to previously present it. (§ 1008, subd. (a); Shiffer
v. CBS Corp. (2015) 240 Cal.App.4th 246, 255 [in reconsideration context, party must
provide satisfactory explanation for failure to produce new evidence at earlier time].)
15
propriety of her married life,” she was compelled by state law to go to court to obtain a
divorce, and there was no evidence the media interviews were done to impact the
resolution of the legal dispute with her husband. (Ibid.)
Our state high court came to the same conclusion in Khawar, supra, 19
Cal.4th 254, which involved a photojournalist who was photographed on a podium near a
famous politician who was assassinated moments later. (Id. at p. 260.) Approximately
20 years later, a book used the photograph to promulgate the theory that the plaintiff was
the assassin, a story which was republished by a tabloid newspaper. (Id. at pp. 259-260.)
The court concluded the plaintiff was not a limited purpose public figure. (Id. at pp. 267-
268.) It noted he was not a suspect, did not testify at trial, did not publicize his views on
the assassination, and did not have media access. (Id. at pp. 265-266.) Although plaintiff
hoped standing next to the candidate would get him photographed for personal souvenir
purposes, the court explained that “a journalist who is photographed with other
journalists crowded around a political candidate does not thereby assume any special
prominence in relation to the political campaign issues.” (Id. at 267.) There was no
evidence the plaintiff “‘engaged the attention of the public in an attempt to influence the
resolution of the issues involved.’” (Ibid.)
In contrast to Firestone and Khawar stands Annette F., supra, 119
Cal.App.4th 1146. There, the plaintiff was one half of a same-sex couple who
purposefully solicited public and media attention regarding their civil commitment
ceremony. (Id. at p. 1164.) The couple set up a Web site to publicize it and to provide
information about same sex marriage and second parent adoptions. (Ibid.) They later
willingly participated in a nationally televised show on same sex marriage and second
parent adoption efforts which received extensive press. (Ibid.) The plaintiff viewed
herself and her partner as “‘advocates for the civil rights of gay and lesbian people.’”
(Ibid.) After the couple split, plaintiff thrust herself to the forefront of, and spoke to the
press about, a legal battle with her former partner regarding second parent adoption of a
16
child to which her former partner had given birth. (Id. at pp. 1156-1157, 1165.) Based on
these activities, the appellate court concluded, plaintiff’s “purposeful activities in drawing
public attention to her relationship with [her former partner] in order to promote gay
marriage and second-parent adoptions, and portraying the . . . litigation as a battle to
protect the rights of gay and lesbian parents and their children, made her a limited
purpose public figure on the subject matter of the litigation.” (Id. at p. 1165.)
Other California appellate courts have reached similar conclusions in cases
involving publicly active and vocal plaintiffs. In Balla, the plaintiff was a land
developer’s representative who presented at public workshops and met with the selection
committee for a major public project while actively seeking the contract for it. (Balla,
supra, 59 Cal.App.5th at pp. 676-677.) Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 25,
involved a doctor who “ha[d] thrust himself into [the] debate [about the relative merits of
plastic surgery] by appearing on local television shows as well as writing numerous
articles in medical journals and beauty magazines, touting the virtues of cosmetic and
reconstructive surgery.” In Nadel v. Regents of University of California (1994) 28
Cal.App.4th 1251, 1269-1270, the plaintiff opposed a city park project by speaking
publicly at city council meetings and demonstrations, writing to a local newspaper and
the city, appearing on six radio programs, speaking to print media who included his
comments in articles, and staffing a weekly information table in the park. And, in
Rudnick v. McMillan (1994) 25 Cal.App.4th 1183, 1190, the plaintiff publicly expressed
concern over a public land preserve on which he grazed cattle and invited reporters to
visit the preserve in hopes they would write articles about him and the preserve’s
condition.
Voluntary active influencing of public matters has also been a defining
characteristic in federal court determinations. For example, in McCafferty v. Newsweek
Media Group, Ltd. (3d Cir. 2020) 955 F.3d 352, the plaintiff was a “politically vocal” 12-
year-old who supported a candidate for President of the United States. (Id. at p. 355.)
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The Third Circuit Court of Appeals found the plaintiff to be a limited purpose public
figure, persuaded by evidence showing he voluntarily injected himself in controversies
surrounding the candidate’s campaign and the candidate’s critics, he released videos on
social media which garnered thousands of views, and media outlets around the world
“sought him out to discuss his political exploits.” (Id. at p. 359.)
The Eighth Circuit Court of Appeals was similarly swayed in United States
v. Sryniawski (8th Cir. 2022) 48 F.4th 583, 588, which included evidence the wife of a
political candidate “was actively involved in [her husband’s] campaign” and at one point
had served as his campaign manager. As support, it cited two state court decisions
involving “spouses of candidates for public office who [were] actively involved in the
campaign.” (Id. at p. 588, citing Krueger v. Austad (S.D. 1996) 545 N.W.2d 205, 212
[wife of political candidate was his campaign advisor, “one of [his] most enthusiastic
supporters,” actively participated in campaign, and allowed her endorsement and
photograph to be used in campaign literature], and Burns v. Times Argus Assn., Inc. (Vt.
1981) 430 A.2d 773, 775 [wife of lieutenant governor made conspicuous public
appearances during his gubernatorial campaign and handed out leaflets and posters in
order to affect outcome]; see also Hemenway v. Blanchard (Ga.Ct.App. 1982) 294 S.E.2d
603, 605-606 [husband of congressional candidate who actively participated in wife’s
news conferences, at times talking more than she did, in attempt to influence outcome in
her favor].)
On the record before us, we find plaintiff to be more like the private
plaintiffs in Firestone and Khawar, than the limited purpose public figure plaintiffs in
Annette F. and the remaining cases. Evidence of her one-time participation in a lunar new
year parade alongside her husband while carrying a campaign sign with an unknown
message can, at most, be characterized as “[t]rivial or tangential participation” which
does not divest a person of their private person status. (Waldbaum v. Fairchild
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Publications, Inc. (D.C. Cir. 1980) 627 F.2d 1287, 1297; see Gertz, supra, 418 U.S. at pp.
344-345, 351-352.)
In so concluding, we acknowledge “the constitutional guarantee [of free
speech] has its fullest and most urgent application . . . to the conduct of campaigns for
political office.” (Buckley v. Valeo (1976) 424 U.S. 1, 15.) “Thus, those engaged in
political debate are entitled not only to speak responsibly but [also] to ‘. . . speak
foolishly and without moderation.’” (Desert Sun Publishing Co. v. Superior Court
(1979) 97 Cal.App.3d 49, 52.)
But there are recognized limitations because “‘[a] reasonable degree of
protection for a private individual’s reputation is essential to our system of ordered
liberty.’” (Khawar, supra, 19 Cal.4th at p. 273.) The precise scope of the limited purpose
public figure category is somewhat amorphous. “One [federal] district court opined that
the task of demarcating between public and private figures ‘is much like trying to nail a
jelly fish to the wall.’” (Marcone v. Penthouse Intern. Magazine for Men (3d Cir. 1985)
754 F.2d 1072, 1082, fn. omitted, quoting Rosanova v. Playboy Enterprises, Inc.
(S.D.Ga. 1976) 411 F.Supp. 440, 443, affd. (5th Cir. 1978) 580 F.2d 859.) However,
because the evaluation hinges on the specific facts and totality of the circumstances in
each case (Wolston, supra, 443 U.S. at p. 167), we need not fully define the bounds of the
doctrine, and we do not attempt to do so. Rather, we simply conclude the facts presented
to the trial court in relation to the anti-SLAPP motion in this case do not demonstrate
plaintiff is a limited purpose public figure. Accordingly, plaintiff did not need to show
actual malice.
B. False Statement of Fact
“‘The sine qua non of recovery for defamation . . . is the existence of
falsehood.’” (Sonoma, supra, 34 Cal.App.5th at p. 42.) “‘Though mere opinions are
generally not actionable,’ a ‘statement that implies a false assertion of fact is actionable.’
[Citations.] ‘“[I]t is not the literal truth or falsity of each word or detail used in a
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statement which determines whether or not it is defamatory; rather, the determinative
question is whether the ‘gist or sting’ of the statement is true or false, benign or
defamatory, in substance.”’” (Balla, supra, 59 Cal.App.5th at pp. 677-678.)
“‘To decide whether a statement is fact or opinion, a court must put itself in
the place of an average reader and determine the natural and probable effect of the
statement, considering both the language and the context.’” (Summit Bank v. Rogers
(2012) 206 Cal.App.4th 669, 698-699 (Summit Bank).) The critical question is “‘whether
a reasonable fact finder could conclude the published statement declares or implies a
provably false assertion of fact.’” (Franklin v. Dynamic Details, Inc. (2004) 116
Cal.App.4th 375, 385, citing Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 19.)
Thus, couching statements in terms of opinion does not necessarily make the statements
nonactionable. (Franklin, at p. 385.) And, what may present as a statement of opinion in
one context, may constitute a statement of fact in another. (Summit Bank, at p. 698.) In
each case, we look to the totality of the circumstances to determine whether the requisite
factual imputation is present. (Balla, supra, 59 Cal.App.5th at p. 678; Franklin, at pp.
385-386.) The question is ordinarily one of law. (Balla, at p. 678.)
The statements and implications targeted by plaintiff’s complaint, as
clarified by evidence submitted by the parties in conjunction with the anti-SLAPP
motion, were the following: that a person who marched in the lunar new year parade
wearing a Vietnamese Communist military uniform was plaintiff’s father; that she was
the daughter of “a senior member of the Communist Party of Vietnam”; that all their
family members in the parade were Communists; and that they wore Communist colors
and danced to Communist music during the parade. Ngo, a self-described “activist
against communism” known in the local Vietnamese-American community for his
“constant appearances on . . . media channels since 1984,” spoke these words to inform
voters in the Vietnamese American community before they considered voting for Ted
Bui. According to Ngo, they needed to know whether Ted Bui would “serve the
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interest[s] of the Vietnamese American refugee community when it [came] to [their]
fight[] against human rights violations in Vietnam and against the Vietnam [C]ommunist
organization affecting [their] political views.”
The overall gist of these statements, taken in the context in which they were
made, is that plaintiff, her father, and her entire family are members or supporters of the
Vietnamese Communist Party. This is a factual assertion capable of being proven true or
false. (See Gertz, supra, 418 U.S. at pp. 326, 339-342 [implicitly finding statements that
person was a “a ‘Leninist,’” “a ‘Communist-fronter,’” and an officer of a communist
organization were actionable factual assertions]; Summit Bank, supra, 206 Cal.App.4th at
p. 696 [expression of opinion that implies false assertion of fact is actionable]; Buckley v.
Littell (2d Cir. 1976) 539 F.2d 882, 894 [allegations of membership in, or well-defined
political affiliation with, Communist party “are readily perceivable as allegations of fact
susceptible to proof or disproof of falsity”].)
Contrary to defendants’ assertion, the statements are not protected
expressions of opinion. The context in which they were made evidences an attempt by
Ngo to provide his audience with a fact which, if believed, would be of significant import
to many Vietnamese-American voters. (See Bently Reserve LP v. Papaliolios (2013) 218
Cal.App.4th 418, 427 [knowledge and understanding of audience targeted by publication
must be considered].) This is underscored by Ngo’s simultaneous effort to persuade
viewers that the information he was conveying was true: “Is that Lan Vu? Lan Vu,
something [sic] Vu Lan, daughter of a Communist colonel. Here, look at see the picture,
folks. When we say something we do have proofs [sic].” A reasonable fact finder could
conclude the offering of “proof” suggests facts, not opinions, are being communicated.
(See id. at pp. 428-429.)
Similarly, the context and the precise words used would not lead a
reasonable listener to perceive the comments as rhetorical hyperbole. (C.f. Hoang, supra,
60 Cal.App.5th at p. 534 [describing someone as a “crook” and “pettily cunning” is
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nonactionable rhetorical hyperbole]; Seelig v. Infinity Broadcasting Corp. (2002) 97
Cal.App.4th 798, 810-811 [“local loser,” “chicken butt,” and “big skank” were “school
yard taunt” and nonactionable rhetorical hyperbole]; Ferlauto v. Hamsher (1999) 74
Cal.App.4th 1394, 1404 [“creepazoid attorney” and “loser wannabe lawyer” were
nonactionable rhetorical hyperbole].)
Turning to falsity of the factual statements, we assume without deciding
that plaintiff bears the ultimate burden in this case of demonstrating falsity (see Nizam-
Aldine v. City of Oakland (1996) 47 Cal.App.4th 364, 373-375), and conclude she met
her anti-SLAPP burden on the issue. In a declaration, she stated the person in the picture
was not her father, her father was never in the military, and she had “never participated
in, [been] involved with, or supported the Communist party.” Such a showing was
sufficient at this stage in the litigation. (See Billauer, supra, 88 Cal.App.5th at p. 962
[evidence of party opposing anti-SLAPP motion must be accepted as true].)
C. Publication with a Natural Tendency to Injure
There is no dispute defendants “published” the alleged defamatory
statements, as that term is used in the defamation arena. (Sanchez v. Bezos (2022) 80
Cal.App.5th 750, 763 [publication means communication to third party who understands
defamatory meaning of statement and its application to person to whom reference is
made].) And, understandably, no one contends a charge of membership in the
Vietnamese Communist Party presented to members of the local Vietnamese-American
community would not have a natural tendency to injure. (See MacLeod v. Tribune
Publishing Co. (1959) 52 Cal.2d 536, 546 [“Whatever the rule may have been when
anticommunist sentiment was less crystallized than it is today [citations] . . . a charge of
membership in the Communist Party or communist affiliation or sympathy is libelous on
its face”]; Lam v. Ngo (2001) 91 Cal.App.4th 832, 850-851 [“the word ‘Communist’ has
some real sting in the Vietnamese community in Orange County, California” because
many of those people have actually lived under Communist regime].)
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D. Negligence
In Gertz, the United States Supreme Court held that states could define the
standard of liability for defamation of private individuals, so long as the states did not
impose liability without fault. (Gertz, supra, 418 U.S. at p. 347.) Consistent therewith,
our state high court later confirmed that negligence is the standard in California.
(Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387, 398; Khawar,
supra, 19 Cal.4th at p. 274; Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 742.)
Thus, a private person seeking to recover for defamation must demonstrate the defendant
failed to exercise reasonable care in determining the truth or falsity of the alleged
defamatory statement before publishing it. (See Hecimovich v. Encinal School Parent
Teacher Organization (2012) 203 Cal.App.4th 450, 470; Carney v. Santa Cruz Women
Against Rape (1990) 221 Cal.App.3d 1009, 1016.)
Plaintiff’s complaint alleged defendants “failed to use reasonable care to
determine the truth or falsity of [the] statements before making them.” Although none of
the evidence she submitted in opposition to defendants’ motion supported that allegation,
evidence supplied by defendants did. Ngo relayed in his declaration that the photos and
video on which defendants relied in making their comments came from another person’s
Facebook post. There is no indication defendants performed any due diligence before
using them to comment about plaintiff and her family. Quite the opposite, it appears they
learned the pitfalls of blind reliance on a social media post when the original poster
contacted Ngo a few weeks after the YouTube broadcast to clarify that the person
depicted in the photos was plaintiff’s uncle, not her father, and that he had dubbed in the
communist music to the video. The evidence was sufficient to demonstrate minimal
merit on the issue of defendants’ negligence.
E. Unprivileged
Defendants contend they are immune from defamation liability pursuant to
a provision of federal law — section 230 — because they simply republished something
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that already existed on social media. We disagree, as the record does not evidence
defendants simply republished defamatory content created by a third party.
“In the Communications Decency Act of 1996, Congress declared: ‘No
provider or user of an interactive computer service shall be treated as the publisher or
speaker of any information provided by another information content provider.’ [Citation]
‘No cause of action may be brought and no liability may be imposed under any State or
local law that is inconsistent with this section.’ [Citation].” (Barrett v. Rosenthal (2006)
40 Cal.4th 33, 39 (Barrett), fn. omitted, citing § 230, subds. (c)(1) & (e)(3).)
Although “[t]hese provisions have been widely and consistently interpreted
to confer broad immunity against defamation liability for those who use the Internet to
publish information that originated from another source” (Barrett, supra, 40 Cal.4th at p.
39), there are recognized outer bounds of such immunity. (See Fair Housing Council of
San Fernando Valley v. Roommates.Com, LLC (9th Cir. 2008) 521 F.3d 1157, 1164
(Roommates) [§ 230 does not “create a lawless no-man’s-land on the Internet”].) Of
relevance here, the immunity extends only to someone who acts as a conduit of
defamatory content created or developed by a third party, not someone who creates or
develops the defamatory content themselves. (See Barrett, at pp. 62-63; Phan v. Pham
(2010) 182 Cal.App.4th 323, 328 (Phan); Roommates, at pp. 1162, 1167-1168.)
Defendants’ misstep is in failing to appreciate the original source of the
alleged defamatory content in this case. The Facebook post on which they based their
YouTube commentary is not in the record. What is in the record is a declaration by Ngo
conveying the Facebook post contained certain pictures and a video. Plaintiff’s
defamation claim is not grounded in those depictions. Rather, it is aimed at
extrapolations about plaintiff made by defendants after viewing the photos and video. As
the creators of the alleged defamatory content, defendants fall outside the protections of
section 230. (See Liapes v. Facebook, Inc. (2023) 95 Cal.App.5th 910, 928 [§ 230 does
not protect person who creates defamatory content]; La Liberte v. Reid (2d Cir. 2020) 966
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F.3d 79, 89-90 [concluding § 230 protection did not apply because social media content
alleged to be defamatory was not simply repetition or sharing of content created by
another]; cf. Phan, supra, 182 Cal.App.4th at p. 328 [concluding § 230 protection applied
because plaintiff simply forwarded alleged defamatory e-mail with no material
contribution to its substance].)
DISPOSITION
The judgment is reversed. On remand, the trial court is directed to strike its
order granting defendants’ anti-SLAPP motion, and to enter a new order denying such
motion with respect to plaintiff’s defamation claim and granting it with respect to
plaintiff’s claims for intentional and negligent infliction of emotional distress. Plaintiff is
entitled to costs on appeal.
DELANEY, J.
WE CONCUR:
SANCHEZ, ACTING P. J.
MOTOIKE, J.
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