Kieu Hoang v. Phong Minh Tran

• Decision Date: 11 January 2021
• Docket Number: 2d Civil No. B302608
• Citation: 60 Cal.App.5th 513,274 Cal.Rptr.3d 567
• Court: California Court of Appeals Court of Appeals
• Parties: KIEU HOANG, Plaintiff and Respondent, v. PHONG MINH TRAN, Defendant and Appellant.

60 Cal.App.5th 513

274 Cal.Rptr.3d 567

KIEU HOANG, Plaintiff and Respondent,

v.PHONG MINH TRAN, Defendant and Appellant.

2d Civil No. B302608

Court of Appeal, Second District, Division 6, California.

Filed January 11, 2021

Mark S. Rosen, Santa Ana, for Defendant and Appellant.

King & Ballow and Richard S. Busch for Plaintiff and Respondent.

YEGAN, J.

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 further contends that the trial court erroneously determined that respondent had satisfied the statute's second prong, i.e., respondent had demonstrated a probability of prevailing on his claims. Therefore, appellant argues that the trial court should have granted his anti-SLAPP motion and struck respondent's complaint. We agree and reverse.

Factual and Procedural Background

In May 2018 respondent filed a first amended complaint (the complaint) against appellant, BBC Global News and related entities (BBC), and Nguyen Huy. The complaint alleged three causes of action against all defendants. The first was for defamation. The second was for a violation of the common law right of publicity. It alleged that defendants’ "[d]efamatory [s]tatements ... are calculated falsehoods ... and ... a cover-up or subterfuge for the unauthorized commercial appropriation of [respondent's] name, image and identity ...." The third cause of action was for civil conspiracy. It alleged, "Defendants acted in concert and came to a mutual understanding ... to accomplish a common and unlawful plan to defame [respondent] and misappropriate his name, image, likeness, and identity for their advantage ...." Respondent claimed that, because of appellant's "false and defamatory statements about him," his "estimated net worth" had decreased by approximately $1 billion. He "suffered lost business opportunities, including ... a cancelled $6 billion ... transaction for a sale of [his] shares of Shanghai RAAS stock."²

The complaint stated: "[Respondent] is a remarkable success story. He was born in Vietnam. He immigrated with his family to the United States in 1975, as the last of the American troops were pulling out of the country. He began work in the U.S. as a technician, earning $1.25 per hour. By 2015, [he] was a self-made billionaire, with a net worth of $3.8 billion, ranking No. 149 on the Forbes 400 list." Appellant cofounded and is the second largest shareholder of Shanghai RAAS, "the largest producer of human blood derived products in China and Asia." In the United States he founded "RAAS Nutritionals LLC ..., which is involved in the research, development and marketing of a range of nutritional aids and health products." In addition, he founded "an internationally-based beauty company offering scientifically advanced skin care products for men and women."

The company "also offers Italian crafted luxury fashion wear and accessories." He owns a winery and vineyards in 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 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 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 communist regimes ...." "I have always been an upstanding, law-abiding businessman who accumulated his wealth from decades of hard work and ingenuity, and not through illegal tricks and deceptions or communist ties." The statements about the girl "refer to model and actress Ngoc Trinh, with whom I had a brief romantic relationship and with whom I was genuinely in love with. I did not use, exploit or attempt to use or exploit Ngoc Trinh, my relationship or our break up for publicity. Nor did I exert improper pressure on Ngoc Trinh to become romantically involved with me, or say ‘goodby’ and throw her away, to promote my products."

4. Billionaires such as Warren Buffet and Bill Gates have used their fortunes to benefit mankind. "Besides creating hundreds of thousands of jobs in the world, they always search for long-lasting values for mankind, instead of using ‘maneuvers’ like [respondent.]" Even "El Chapo," the notorious Mexican drug dealer, "built free schools and free hospitals for the poor." Respondent and other named Vietnamese persons³ "are merely individuals creating wealth through ‘relations’ with government officials, enriching themselves by the so-called merchant's ‘petty smart,’ but not getting rich by the 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 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,...