Lam v. Ngo

• Decision Date: 21 August 2001
• Docket Number: No. G026329.,G026329.
• Citation: 91 Cal.App.4th 832,111 Cal.Rptr.2d 582
• Court: California Court of Appeals Court of Appeals
• Parties: Tony LAM et al., Plaintiffs and Respondents, v. Ky NGO et al., Defendants and Appellants.

111 Cal.Rptr.2d 582

91 Cal.App.4th 832

Tony LAM et al., Plaintiffs and Respondents, v. Ky NGO et al., Defendants and Appellants.

No. G026329.

Court of Appeal, Fourth District, Division 3.

August 21, 2001.

Lyon Law and Geoffrey C. Lyon, Los Angeles, for Defendants and Appellants.

Callahan & Blaine and Jim P. Mahacek, Santa Ana, for Plaintiffs and Respondents.

OPINION

SILLS, P.J.

I. Introduction

This appeal from the denial of an anti-SLAPP suit motion requires us to come to the following conclusions:

(1) Because the Legislature has specified that the anti-SLAPP suit law (Code Civ. Proc., § 425.16) is to be construed broadly, the provision in the law that a special motion to strike "may be filed within 60 days of the service of the complaint" (§ 425.16, subd. (f)) includes amended as well as original complaints. (See DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 565, 92 Cal.Rptr.2d 755 [considering anti-SLAPP motion to strike first amended complaint]; Globetrotter Software, Inc. v. Elan Computer Group, Inc. (N.D.Cal.1999) 63 F.Supp.2d 1127, 1129 [observing that since the Legislature did not say "original complaint," statutory time period runs "from the filing of the most recent amended complaint"].)¹

(2) Because the time specified in the anti-SLAPP law (§ 425.16, subd. (f)) allows filing motions to strike within 60 days of the service of amended complaints, and the amended complaint in this case was itself served by mail, the moving party had an extra five days to file his anti-SLAPP suit motion. (Code Civ. Proc., § 1013, subd. (a).) Accordingly, an anti-SLAPP suit motion to strike, filed 64 days after the service of the first amended complaint by mail, was timely.

(3) Because the issues involved in consideration of a preliminary injunction are different from those involved in an anti-SLAPP suit motion to strike, the granting of a preliminary injunction in favor of the plaintiff does not have collateral estoppel or res judicata effect as against a subsequent anti-SLAPP suit motion. (Compare Pro-Family Advocates v. Gomez (1996) 46 Cal.App.4th 1674,1680-1681, 54 Cal.Rptr.2d 600 [consideration of preliminary injunction entails interrelated factors of likelihood of prevailing and the need to prevent interim harm] with Code Civ. Proc., § 425.16, subd. (b)(3) [standard for anti-SLAPP suit is whether plaintiff has "established a probability" of prevailing on claim].)

(4) Because the trial judge erroneously assumed both (a) that the anti-SLAPP suit motion was untimely, and (b) that the prior granting of a preliminary injunction precluded consideration of the motion on the merits, the order denying the motion was predicated on two faulty premises. Therefore this court must proceed to the merits of the motion de novo. (See e.g., Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1364, 102 Cal.Rptr.2d 864 ["On appeal, the issues are reviewed de novo."]; Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 474, 102 Cal. Rptr.2d 205 ["we review the record de novo"]; Foothills Townhome Assn. v. Christiansen (1998) 65 Cal.App.4th 688, 695, 76 Cal.Rptr.2d 516 [reviewing record independently to determine whether trial court correctly denied anti-SLAPP suit motion].)

(5) Because this case involves possible tort hability for the collateral effects of a political protest, three principles set forth in NAACP v. Claiborne Hardware Co. (1982) 458 U.S. 886, 102 S.Ct. 3409, 73 L.Ed.2d 1215 are controlling. They are:

(a) Peaceful picketing of a business for political reasons cannot be burdened by state tort liability, even if it has the effect of interfering with prospective economic advantage. (NAACP v. Claiborne Hardware, supra 458 U.S. at p. 918, 102 S.Ct. 3409 [state may not "award compensation for the consequences of nonviolent, protected activity"].)

(b) Violence and other criminal acts are bases of tort liability and not constitutionally protected, even when committed out of political motives and in the context of a political demonstration. (NAACP v. Claiborne Hardware, supra, 458 U.S. at p. 916, 102 S.Ct. 3409 ["No federal rule of law restricts a State from imposing tort liability for business losses that are caused by violence and by threats of violence."].)

(c) An organizer of a political protest cannot be held personally liable for acts committed by other protesters unless he or she authorized, directed or ratified specific tortious activity, incited lawless action, or gave specific instructions to carry out violent acts or threats. (See NAACP v. Claiborne Hardware, supra, 458 U.S. at p. 927,102 S.Ct. 3409.)

(6) Applying these principles to the case at hand, we conclude that there is insufficient evidence to implicate the sole named defendant, organizer Ky Ngo, in any of the violent acts that occurred in connection with the protest. We further conclude that the nonviolent aspects of the protest (in which Ngo was implicated) cannot, consistent with NAACP v. Claiborne Hardware, support tort liability. Accordingly, the tort causes of action against Ngo must be stricken.

(7) The violent acts associated with the protest do support tort liability, so the case must be remanded to allow the plaintiff to substitute named individuals for any of the Doe defendants who can be shown to have engaged in them.

II. Facts

In 1999, a video store in Westminster placed the flag of the North Vietnamese communists and a poster of Ho Chi Minh in the window. Large numbers of Orange County's Vietnamese community were outraged and staged demonstrations at the store.

They also demanded the support of local politicians, including Garden Grove City Council Member Tom Lam. Lam, however—or at least as his court papers in this case would later claim—had been instructed by the Garden Grove City Attorney not to publicly support the anti-video-store demonstrators. He kept mum.

A group of the demonstrators then focused their attention on council member Lam, who, they would later claim, had shown a "conspicuous lack of interest or concern for the Vietnamese community's outrage" at the video store display. (We note the irony in passing: A man who had risked his life to escape from a communist regime was now condemned for being soft on communism.)

Lam owned a restaurant, the Vien Dong, and beginning March 12, 1999, a group of protesters showed up at the restaurant to demand that Lam resign his city council post. The restaurant's landlord was sympathetic to the protester's position, and allowed them to gather in the parking lot. The Vien Dong's business suffered, and less than a week later, Lam and the restaurant (which is separately incorporated) filed this action against Ky Ngo, the landlord,² and 1500 Doe defendants. A temporary restraining order was issued on March 19, 1999, prohibiting the protesters from "approaching within 20 feet of the entrance and windows" of the restaurant, and from using bullhorns or other amplification equipment that could be heard within the restaurant. By April 2, a modified temporary restraining order established a 50-foot "buffer zone" in all directions from the perimeter around the restaurant's parking lot.

Lam and the restaurant sought a preliminary injunction based on a series of declarations that established these facts: In the period prior to the issuance of the TRO's(temporary restraining orders), protesters (a) physically accosted prospective patrons and shouted epithets at them; (b) in some cases, slashed the tires and pounded on the cars of prospective patrons; (c) used bullhorns to disrupt the meals of those customers who did manage to make it into the restaurant; (d) plastered posters and banners on the side of the restaurant; and (e) even urinated on the side of the restaurant premises. In one instance, an 89 year old man was surrounded by 30 to 40 protesters who kicked and pounded his car, causing about $250 in damages. When the elderly gentleman finally stepped out of the car, he faced further insults from the crowd. Security guards came to his rescue and escorted him safely away. And when one of the county board of supervisors and his wife tried to have lunch at the restaurant, they were called "motherfuckers" by the crowd as they approached the premises. As they left, protesters stood in front of their car blocking the driveway. Lam also presented evidence that some of the protesters tried to videotape or otherwise record the license plates of some of the restaurant's customers.

Continuing throughout the protests, demonstrators bore numerous signs casting Lam as a communist and a traitor. They carried drawings of Lam as a horned and fanged devil with blood dripping down his mouth. They crafted a life-sized effigy of Lam tied to a gallows next to a life-sized effigy of Ho Chi Minh; a bloody axe bearing a South Vietnamese flag, coffin-like box, and the slogan "Down with the Communists" adorned their creation. The protesters also created three-dimensional effigies of Lam and Ho Chi Minh in lewd sexual positions across the street from the restaurant.

Financially, the restaurant suffered a 40 percent decline in revenues through the end of April, compounded by the extra expense of needing to hire security guards to escort customers through the parking lot. The trial court granted the preliminary injunction May 28,1999.³

On May 24, 1999, four days before the preliminary injunction was granted, Lam filed and served by mail a first amended complaint. His wife was added as a plaintiff, and he alleged these causes of action against Ngo and the protesters: intentional infliction of emotional distress, intentional interference with economic advantage, trespass, and nuisance. Ngo filed a motion to strike pursuant to section 425.16 of the Code of Civil Procedure (i.e., an anti-SLAPP suit motion) on July 28, 1999, 64 days after the service by mail.

The trial court denied the motion in October, and the written order makes it very clear that the denial was...