Case Name: Do, et al. v. Tran, et al.
Case No.: 16-CV-300122
This action initiated by plaintiffs Vien Thao Media, Inc. (?VTM?) and its president and Chief Executive Officer, Tron Do (?Do?), against defendants Nguyen Song Tran (?Tran?) and Truong Huynh Vu (?Vu?) arises from certain alleged defamatory statements posted about Do online.
According to the allegations of the first amended complaint (?FAC?), Tran posted false statements about Do in an online Yahoo! Group containing a large number of Vietnamese members.? (FAC, ? 6.)? Specifically, Tran wrote Do is a communist sympathizer who associates with high-ranking officials of the communist Vietnamese government.? (Ibid.)? The purpose of the post was to indicate Do is unqualified to be president and Chief Executive Officer (?CEO?) of VTM, the largest Vietnamese media group in the United States.? (Ibid.)? In addition, Vu published defamatory statements about Do by twice e-mailing the same Yahoo! Group, stating he ?cries afoul as he rips people off,? is dishonest, and is a crook.? (Ibid.)? These statements hurt Do?s standing in the Vietnamese community and his reputation.? (Id. at ? 10.)
Do advised Tran and Vu that their statements were untrue and demanded they retract them.? (FAC, ? 11.)? Vu did not respond.? (Id. at ? 14.)? As for Tran, he did not retract his statements and, instead, posted anew in the same Yahoo! Group that Do is a communist sympathizer and collaborates with a communist newspaper.? (Id. at ? 12.)
Do and VTM (collectively ?Plaintiffs?) assert four causes of action for: (1) defamation (per se); (2) defamation (per quod); (3) intentional infliction of emotional distress (?IIED?); and (4) common law false light.
Tran and Vu (collectively ?Defendants?) demur to each cause of action on the ground of failure to state sufficient facts to constitute a cause of action.
Prior to addressing the merits of the demurrer, the Court will address two threshold issues.? First, the Court observes Defendants did not file a meet and confer declaration as required by Code of Civil Procedure section 430.41.? That statute requires a demurring party to meet and confer with the party who filed the challenged pleading in an effort to informally resolve the demurring party?s objections prior to filing the demurrer. (Code Civ. Proc., ? 430.41, subd. (a).)? If these efforts fail, the demurring party must file and serve a declaration regarding the meet and confer process with the demurrer.? (Code Civ. Proc., ??430.41, subd. (a)(3).)? The meet and confer requirement applies to amended pleadings.? (Code Civ. Proc., ? 430.41, subd. (a).)? Despite Defendants? failure to comply with these requirements, the Court may not overrule the demurrer on this ground. ?(See Code Civ. Proc., ? 430.41, subd. (a)(4).)? With that said, Defendants are admonished to comply with the meet and confer requirement in the future.
Next, the Court notes the demurrer was not timely filed. ?Code of Civil Procedure section 430.40, subdivision (a) provides a party has 30 days after the service of the pleading to file a demurrer.? Consistent with that statute, the parties stipulated to an order permitting Plaintiffs to file the FAC and requiring Defendants to file a responsive pleading within 30 days of the filing and service of the FAC.? The demurrer was filed on August 7, 2017, far more than 30 days after service of the FAC on April 25, 2017. ?The demurrer is untimely because it filed after both the stipulated and statutory deadline.? As Plaintiffs do not challenge the demurrer on the basis it was untimely filed, the Court will consider its merits. ?(See Jackson v. Doe (2011) 192 Cal.App.4th 742, 750 [holding a trial court has discretion to consider an untimely demurrer].)
Turning to the merits of the demurrer, although Defendants indicate they are demurring to every cause of action, they only address the first and second causes of action for defamation per se and per quod.? For example, Defendants set forth the elements of a defamation claim and?? conclude Plaintiffs have not pleaded those elements as to VTM.? Defendants do not address the elements of an IIED or false light claim or discuss those causes of action whatsoever.? As such, Defendants fail to support their demurrer relative to the third and fourth causes of action.? The demurrer is therefore not sustainable as to those claims.? (See Cal. Rules of Court, rule 3.1113(b) [memorandum must contain statement of law, arguments relied on, and discussion of law cited in support of position advanced].)
As to the defamation causes of action, Plaintiffs allege the statements made by Defendants were false and calculated to expose Do to hatred, contempt, and ridicule.? (FAC, ?????? 17-19.)? Do?s reputation within the Vietnamese community suffered as a result of the publication of the statements.? (Id. at ?? 19-21.)? Relative to only the second cause of action for defamation per quod, Plaintiffs further allege why the statements were harmful and explains the history of the communist party in Vietnam.? (Id. at ?? 28-33.)
There are two types of defamation, libel and slander.? (Civ. Code, ? 44.)? ?Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye,? as alleged here.? (Civ. Code, ? 45.)? 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.?[1]? (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1369.)? Defendants do not specifically state which element they contend is inadequately pleaded; instead, they assert ?[n]othing in the complaint states or references to any factual statements defamatory in nature of and concerning [VTM]? and conclude VTM does not plead all the elements of a defamation claim.? (Mem. Ps. & As., p. 4:18-20.)? Presumably, Defendants intended to challenge the element of publication as ?[p]ublication means communication to some third person who understands the defamatory meaning of the statement and its application to the person to whom reference is made.?? (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645, italics added.)? A reasonable reader must be able ?impute to a statement therein a meaning which tended to harm the reputation of the plaintiff.?? (Rangel, supra, 73 Cal.App.4th at p. 5.)? Thus, the defamatory statement must be directed to the plaintiff.
The alleged posts and e-mails are only directed to Do; Plaintiffs do not allege Defendants made any statements whatsoever relative to VTM.? Although Plaintiffs argue in opposition that they allege Defendants inferentially and directly published libelous statements about VTM, this argument is problematic for two reasons.
First, the allegations in the FAC do not directly implicate VTM.? Every alleged statement is directed to Do individually and does not mention VTM.? Plaintiffs allege few facts relative to VTM and do not recite any statements directed to it.? Plaintiffs plead: ?Defendants have published libelous and defamatory statements about Plaintiff VTM in conjunction with the statements about Plaintiff DO.? These statements have defamed VTM as they have negatively impacted the Vietnamese community?s view of the managerial integrity of VTM and considered defamatory to VTM?s business reputation.?? (FAC, ? 10.)? In addition, Plaintiffs allege the posting was intended to indicate Do was unqualified to be president and CEO of VTM.? (Id. at ???? 6, 17.)? Based on these allegations, it is unclear whether the posts and e-mails published via the Yahoo! Group are directed to VTM in addition to Do or whether there are separate statements directed to it because the term ?in conjunction with? implies the existence of separate unidentified statements.? To the extent the posts and e-mails were intended to be inferentially directed to VTM, Plaintiffs inadequately plead as much for the reasons discussed below.? To the extent Plaintiffs intended to plead there are separate statements directed to VTM aside from the referenced posts and e-mails, they inadequately plead the existence of a publication.? To plead libel, ?the words constituting an alleged libel must be specifically identified, if not pleaded verbatim, in the complaint.?? (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 31.)? Plaintiffs do not allege any separate, specifically identified statements and thus do not plead the existence of any statements directed to VTM.
Second, the pleading does not reflect Defendants published any statements inferentially directed to VTM.? While a corporate entity may bring an action for defamation, it cannot state a claim for defamation if the defamatory statements are reasonably interpreted as directed to an employee or officer rather than the entity itself.? (Rangel, supra, 73 Cal.App.4th at p. 6; see also 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, ? 532.)? ?[I]f language written about a corporate officer cannot be interpreted as saying anything about the way that officer performs his or her duties and responsibilities as an officer of the corporation, so as to have a natural tendency to affect the corporation disadvantageously in its business, the corporation has no right of action.?? (Rangel, supra, 73 Cal.App.4th at p. 6.)? Although Plaintiffs plead the statements ?negatively impacted [VTM?s] standing in the Vietnamese community? and indicated Do is ?unfit? to be CEO (FAC, ?? 10, 17), they do not actually allege any connection between communism and the way Do performs his duties and responsibilities as an officer of VTM.? Because Plaintiffs do not allege the statements relate in any way to how Do performs his duties as an officer, they fail to allege any statements inferentially directed to VTM.
Accordingly, Plaintiffs fail to allege the element of publication as to VTM; demurrer to the first and second causes of action are therefore sustainable.
For the foregoing reasons, the demurrer to the first and second causes of action on the ground of failure to state sufficient facts to constitute a cause of action is SUSTAINED with 10 days leave to amend to the extent these claims are asserted by VTM.? The demurrer to the third and fourth causes of action on the ground of failure to state sufficient facts to constitute a cause of action is OVERRULED.
The Court will prepare the Order.
[1] Defamation per se and per quod share these elements.? Although not relevant to the analysis of Defendants? argument, the Court notes defamation per se is when a defamatory meaning is reflected from the language itself and does not require extrinsic facts to explain why the statement is defamatory.? (Palm Springs Tennis Club v. Rangel (1999) 73 Cal.App.4th 1, 5 (?Rangel?).)? In contrast, defamation is per quod is when the defamatory meaning is only ascertainable through extrinsic facts.? (Ibid.)