Buddha Voice Broadcasting Alliance v. Sioeng

 

 

Filed 8/27/14  Buddha Voice
Broadcasting Alliance v. Sioeng CA2/1

 

 

 

 

>NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a),
prohibits courts and parties from citing or relying on opinions not certified
for publication or ordered published, except as specified by rule
8.1115(b).  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SECOND APPELLATE DISTRICT

 

DIVISION ONE

 

 
>

BUDDHA VOICE BROADCASTING ALLIANCE et al.,               Plaintiffs and Appellants,               v.   YOPIE SIOENG et al.,               Defendants and Respondents.

B249055         (Los Angeles County       Super. Ct. No. BC479414)

 

 

            Appeal
from an order of the  href="http://www.fearnotlaw.com/">Superior Court of Los Angeles County,
Ruth Ann Kwan, Judge.  Affirmed.

            Law
Offices of Gary Hollingsworth and Gary Hollingsworth for Plaintiffs and
Appellants.

            Emilio
Law Group, Daniel G. Emilio, Kyle J. Waldie and Laurie M. Cortez for Defendants
and Respondents.

——————————

>

            Plaintiff
Huei Chin Yang (Yang), a Buddhist, wrote an article about the contemporary
Buddhist leader H.H. Dorje Chang Buddha III that ran in a local Southern
California Chinese newspaper, the International Daily News, in July 2011.  Later that month, the article was republished
in a newspaper published in China,
the People’s Daily Overseas Edition.  Plaintiffs’
third amended complaint (TAC) asserted claims for defamation and fraud,
alleging that both newspapers, after initial publication of the article, published
defamatory statements about the article that it was an “advertisement” and “illegal[ly]”
placed in the People’s Daily Overseas Edition. 
The trial court granted defendants’ special motion to strike under href="http://www.mcmillanlaw.us/">Code of Civil Procedure section 425.16,href="#_ftn1" name="_ftnref1" title="">[1]
finding that the article concerned a matter of public interest and that
plaintiffs could not establish a reasonable probability of prevailing on the
merits of their claims.  We affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

            >1.         The
Parties and Plaintiffs’ Article

            Plaintiff
Buddha Voice Broadcasting Alliance (BVBA) is an organization that disseminates
news and information concerning href="http://www.sandiegohealthdirectory.com/">Buddhism in California and
worldwide.  Yang, a devout Buddhist, is
the principal officer and director of BVBA. 
Yang has a Ph.D. in Mass Media from a prominent Taiwan
university, and has taught college-level journalism in Taiwan.  The International Buddhism Sangha Association
(IBSA), based in San Francisco, is an organization that presents the World Buddhist conferences held
in Hong Kong.  These conferences are a
significant event for Buddhist followers worldwide, and IBSA’s 2011 World
Buddhist Conference conducted in Hong Kong on August
7, 2011 “was attended by more than 8,000
people representing 6,000 Buddhist organizations and groups worldwide.  One of the main themes of the [c]onference
was to announce the first Buddha in . . . [2,000] years to
be recognized in accordance with the dharma[:] . . . H.H.
Dorje Chang Buddha III.”

            As
a result, “IBSA . . . asked [Yang] to contribute a factual
article, entitled ‘H.H. Dorje Chang Buddha III has been Truly Recognized in
Accordance with the Dharma’ . . . about this Buddhist
leader in local Chinese papers in Southern California,
and . . . [to] distribute[] [the article] to attendees at
the [c]onference.”  In the article, Yang
interviewed some Buddhist leaders about the status of H.H. Dorje Chang Buddha III,
and reported on “recent incidents reflecting on the recognition of [H.H. Dorje
Chang Buddha III’s] positive contributions to art and philanthropy, including
the award of the World Peace Prize in 2010 . . . and the
closing of a three-year investigation into him by Interpol.”  According to Yang, the article “was a factual
report about how [H.H. Dorje Chang Buddha III] endured suffering by
withstanding long-term persecution by the Chinese government for his religious
activities.”href="#_ftn2" name="_ftnref2"
title="">[2]

            Defendant
International Daily News, owned by defendant Ted Sioeng, publishes a Chinese
language daily newspaper, the “International Daily News,” that is distributed
throughout Southern California.  Yopie Sioeng, who is Ted
Sioeng’s son, is the general manager of International Daily News.  International Daily News is part of a group
of newspapers under the ownership and management of Sioeng.

            Defendant
People’s Daily is a Chinese company that publishes a newspaper of general
circulation in China that is printed and distributed worldwide, including Los Angeles County, and is
also distributed in an electronic version accessible on the internet.  People’s Daily publishes 10 newspapers, including
People’s Daily Overseas Edition. 
According to its website, People’s Daily is the most influential and
authoritative newspaper in China,
and is widely considered to represent and publish the official policy of the
Chinese Communist Party and the Chinese government.  The Chinese Communist Party and the Chinese
government exercise strict media control over the contents of People’s Daily
and all of its subsidiaries, including People’s Daily Overseas Edition and the
International Daily News.  People’s Daily
permits only its official version of the news to run in its paper, as well as
in the People’s Daily Overseas Edition and the International Daily News.  People’s Daily has a circulation of three
million and is closely watched and read for insight into the official views of
the Chinese government.

            The
editor in chief of People’s Daily Overseas Edition is Zhang De Xiu (Zhang).  Zhang resides in China.  Zhang was responsible for reviewing, editing,
and approving any published materials in the People’s Daily Overseas Edition to
ensure compliance with the editorial policy of People’s Daily and the Chinese
government.  To republish articles in the
People’s Daily Overseas Edition, the International Daily News must obtain full
approval from Hai Tian Development USA, Inc. (Hai Tian), a New York
corporation with its primary place of business in New York, New York.  Hai Tian is the chief publication and
printing agency of People’s Daily Overseas Edition.

            2.         Publication of the Article and Defendants’
Statements

                        (a)      July
9, 2011
Publication in the International Daily News

            On
July 9, 2011, the article was published in the International Daily News’s print
edition on page 12, and 1.2 million copies of the article were shipped upon
plaintiffs’ request.  The article also appeared
on International Daily News’s website.

            According to
defendants, Yopie Sioeng does not personally approve of the content of
articles.  Instead he relies on Zhang to
make such decisions.  “In early July
2011, . . . Yang approached [Yopie Sioeng] about placing an
advertorial in [the] local International Daily News paper . . . [and]
on [the] website.”  Yang stated that she
represented the IBSA and wanted to promote an article on its behalf, and promised
that the IBSA would purchase 1.2 million copies of the paper.

            To that end, on July 8, 2011, IBSA and International Daily News entered into a printing
agreement in which IBSA agreed to purchase 1.2 million copies of the article at
a cost of $75,000 “in exchange for allowing [IBSA] to place a one-page advertisement
content on the final page.”

            According to Yopie Sioeng,
International Daily News never retracted the article or issued correction
statements about it.

                        (b)       July 28, 2011 Publication in the People’s Daily
Overseas Edition

            On
July 26, 2011, Yang requested that Yopie Sieong reprint the article in the People’s
Daily Overseas Edition.  Yopie Sioeng
explained that he would have to seek permission from the New York office
(Hai Tian and Ted Sioeng) to do so, and according to Yang, Yopie Sieong informed
her the New York office had approved the article for publication.  Although Yopie Sieong had not yet obtained
such approval, Yang began working with Alice Li, the Chinese editor of People’s
Daily to prepare the article for publication in the People’s Daily Overseas
Edition.  Yang told Li that Yopie Sioeng
had approved the article, and Li agreed to place the article in the People’s
Daily’s print edition and website. 
However, Yopie Sioeng subsequently learned that the request to print the
article in the People’s Daily had been denied.

            On
July 28, 2011, the article was published on page 8 of the People’s Daily Overseas
Edition.  Page 8 of the People’s Daily
Overseas Edition is devoted to cultural, historical or literary topics.  Shortly after the article was published on July 28, 2011, Yopie Sioeng and Yang met in person.  Yopie Sioeng told Yang he would reprint five
million copies pursuant to the parties’ previous contract, which Yang estimated
would cost $350,000.  Sioeng would only
reprint the article without the logo of People’s Daily, but Yang would not
agree to do so because that would imply that the article was not genuinely
published by the People’s Daily Overseas Edition.  Yang claims she further told defendants she
would not publish the article as an “advertisement.”

            Plaintiffs denied
there was an advertising contract for the July 9 and 28, 2011 publication of
the article.  Further, Yang disputed that
she unilaterally forwarded the article to the People’s Daily Overseas Edition’s
Chinese office and represented to People’s Daily Overseas Edition that the
necessary approval for publication had been obtained, or that she agreed the
article was an “advertisement.”  Yang
asserted the article was removed because of a plan by defendants to discredit
plaintiffs.

                        (c)       August 4,
2011
Correction Notice

            On
August 4, 2011, just before the August 7, 2011 World Buddhist Conference in
Hong Kong, defendant International Daily News published a correction
announcement on its website that stated, “[t]here was a mistake with respect to
the July 28th advertisement page that appeared on this page.  It has been removed.  We hereby specially issue this announcement.”  The source of the announcement was
International Daily News, and it was understood by defendants and the attendees
of the Buddhism conference that the announcement referred to the article.  Plaintiff immediately asked Yopie Sioeng and
Ted Sioeng to retract the correction announcement.  Defendants did not retract the correction
announcement.

            During
the World Buddhist Conference on August 7, 2011, Yang was questioned by
attendees whether she misrepresented the facts of the article or whether it was
merely an advertisement as stated by defendants because the sudden removal of
the article from the website of the International Daily News, along with the
incorrect description of the article as an advertisement, caused the attendees
of the conference to question the veracity of the article, as well as the
honesty and moral conduct of plaintiff.

            Yang
asserted that defendants’ course of conduct was a combined and calculated effort
to smear Buddhism and the Buddhist leader and was tantamount to continued
persecution of H.H. Dorje Chang Buddha III.

                        (d)       The
September 10, 2011 Announcement

            On
September 28,
2011, People’s Daily Overseas Edition
issued an announcement on page 2 of its print edition and website that stated, “‘On
July 28th of this year, . . . our newspaper’s printing
agent in Los Angeles, USA replaced the content of page eight of the People’s Daily News
Overseas.  The agent published the
Article “H.H. Dorje Chang Buddha III Has Been Truly Recognized in Accordance
with the Dharma” under the name of the People’s Daily Overseas Edition, which
has caused an extremely bad effect. 
Thus, our newspaper solemnly announces that usurping the name of the
People’s Daily to print and disseminate any publicity material is illegal.  Our newspaper will, according to the law,
investigate this matter and hold responsible whoever did this.  For the correct content of the July 28th People’s
Daily Overseas Edition, please check the “People’s Daily News Chain” at the
People’s Daily Online.’”

            Plaintiffs assert the announcement
defamed plaintiffs because persons who know plaintiffs, including but not
limited to adherents of Buddhism worldwide, were aware that plaintiffs had been
responsible for writing and contributing the article, and the announcement
charged plaintiffs with committing the crime of larceny and forgery; the announcement
further charged plaintiffs with dishonesty or immoral conduct; and it had a
natural and unavoidable tendency to injure plaintiffs in their business and
occupation.

            >3.         Plaintiffs’
Complaint and Defendants’ Motion to Strike

            Plaintiffs’
operative TAC filed February 14, 2013 alleged claims
for defamation and fraud against Yopie Sioeng and the International Daily News,
and DOES 1 through 10.href="#_ftn3"
name="_ftnref3" title="">[3]  Plaintiffs sought $50 million in damages,
punitive damages, interest and costs.

            Plaintiffs’
defamation claim alleged that on August 4, 2011, defendants
published false and unprivileged statements intentionally and maliciously
designed to harm plaintiffs’ reputation by falsely characterizing plaintiffs’
article as an advertisement.  In
addition, the September
28, 2011 correction falsely stated that the
article had been placed in defendants’ publications through illegal means and
plaintiffs had used the name of People’s Daily’s in an illegal manner.  The purpose of both announcements was to
cause persons to cease doing business with plaintiffs and to injure or destroy
plaintiffs’ charitable, religious and fundraising work, and was tantamount to
continued persecution of H.H. Dorje Chang Buddha III.

            Plaintiffs’
fraud claim asserted that Yopie Sioeng’s July 2011 representation that he had
the authority to publish the article in the People’s Daily Overseas Edition was
false.  This disguised approval was made with
the intent to convince plaintiff to rely and publish the article in the People’s
Daily Overseas Edition, and to permit People’s Daily Overseas Edition and
People’s Daily to repudiate the article and falsely claim plaintiffs had
participated in a scheme to place the article in the People’s Daily Overseas
Edition without authority, and “[d]efendants therefore seized the opportunity
to smear Buddhism and H.H. Dorje Chang Buddha III, in continued persecution of
the Buddhist leader.”

            Defendants filed a
special motion to strike, arguing the TAC arose from protected activities,
namely, public statements made on a public matter in a public forum.  Further, plaintiffs could not establish a
reasonable likelihood of prevailing on the merits because the statements were
not defamatory:  neither the article nor
the correction statement mentioned plaintiffs; the correction statement was not
false; defendants had no contractual obligation to run the article on their
website; the term “advertisement” was a true statement because plaintiffs
agreed the article was an advertisement; and plaintiff could not establish
malice.  In addition, plaintiffs’ claim
for fraud failed because it was based on plaintiffs’ subjective belief that
defendants engaged in a disguised conspiracy to deceive plaintiff into
believing defendants had approved publication of the article, as a first step
in a scheme to smear Buddhism.

            Plaintiffs’
opposition asserted that the lawsuit did not concern a matter of public
interest because the contents of the article was not the gist of plaintiffs’
lawsuit, but rather its characterization in the International Daily News as an “advertisement”
and the statements about its illegal placement in the People’s Daily Overseas
Edition.

            The trial court
found that plaintiffs’ TAC arose from protected activity and that plaintiffs
could not establish a reasonable probability of prevailing on the merits.  The court found plaintiffs’ claims arose from
protected activity because the article and correction announcement were
published in newspapers and on a website, and further that the correction
announcement was made in connection with a public issue or an issue of public
interest, namely, Buddhism and governmental persecution.  In so finding, the court rejected plaintiffs’
assertions that their claims were solely based on the retractions and involve a
private dispute between plaintiffs and defendants.

            The court found
plaintiffs had not demonstrated a probability of prevailing on the merits.  Plaintiffs’ defamation claim failed because
plaintiffs presented no evidence that the intended audience of the correction
reasonably understood it to be about plaintiffs—there were no declarations from
persons who read the article, only Yang’s conclusory declaration.  The September 28, 2011 Announcement that the
article had been placed in defendants’ publication by illegal means and the
statement that the name People’s Daily was used in an illegal manner were
likewise not connected to plaintiffs. 
Lastly, plaintiffs’ fraud claim failed because plaintiffs did not submit
evidence of a conspiracy to smear Buddhism and H.H. Dorje Chang Buddha III,
particularly since plaintiffs did not dispute that International Daily News
originally published the article without incident on July 9, 2011.

DISCUSSION

            Plaintiffs
argue that the issue is not a matter of public interest but is a private
controversy whether the article was a feature or an advertisement and whether plaintiffs
acted illegally in publishing the article in the People’s Daily Overseas
Edition.  They assert that the defendants’
defamatory statements were not about the contents of the article itself, but
were made about plaintiffs, who are not public figures; further, defendants
engaged in a conspiracy by which the July 9, 2011 publication was to convince
plaintiffs that Communist Party newspapers accepted religious topics without
problem, and the July 28, 2011 publication was to set up the trap by creating
widespread interest in the article before the World Buddhist Conference on
August 7, 2011, at which time defendants retracted the article by stating the
article was an “advertisement” and was placed in the People’s Daily Overseas
Edition “illegal[ly].”

            Defendants
argue the statements come within the first prong of the anti-SLAPP statutes
because the statements were made in a public forum on a public matter and the
People’s Daily’s statements were made in connection with an issue under review
by the governmental authorities of China.  (§ 425.16, subds. (e)(2), (3).)  Further, they argued plaintiffs cannot
prevail on the merits because the term advertisement is not defamatory and
plaintiffs’ allegations regarding defendants’ motives were pure speculation.

I.          Standard of Review

            Known
as the anti-SLAPP statute, section 425.16 provides that a “cause of action
against a person arising from any act of that person in furtherance of the
person’s right of petition or 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.”  (§ 425.16,
subd. (b)(1).)  Ruling on an anti-SLAPP
motion is a two-step process.  First, the
trial court must determine whether the defendant has made a prima facie showing
that the challenged cause of action arises from protected activity.  (People
ex rel. Fire Ins. Exchange v. Anapol (2012) 211 Cal.App.4th 809, 822.)  If, and only if, the defendant makes that
showing must the trial court proceed to the second step—determination of
whether the plaintiff has shown a probability of prevailing on the claim.  (Ibid.)  The appellate court reviews a ruling on an
anti-SLAPP motion de novo, using the same two-step process.  (Coretronic
Corp. v. Cozen O’Connor (2011) 192 Cal.App.4th 1381, 1387; >Cabral v. Martins (2009) 177 Cal.App.4th
471, 478.)

            Relevant
here, subdivision (e) of section 425.16 delineates the type of speech or
petitioning activity protected.  Such
acts include written or oral statements “made in a place open to the public or
a public forum in connection with an issue of public interest”; or “any other
conduct in furtherance of the exercise of the constitutional right of petition
or the constitutional right of free speech in connection with a public issue or
an issue of public interest.” 
(§ 425.16, subd. (e)(3), (4).) 
Courts have not precisely defined the boundaries of a cause of action “arising
from” such protected activity.  (§
425.16, subd. (b).)  >City of Cotati v. Cashman (2002) 29
Cal.4th 69, 78 explained that “the statutory phrase ‘cause of
action . . . arising from’ means simply that the defendant’s
act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or
free speech.  [Citation.]  In the anti-SLAPP context, the critical point
is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition
or free speech.”

            Whether
the statute applies is determined from the “principal
thrust or gravamen” of the
plaintiff’s claim.  (>Martinez> v. Metabolife Internat.,
Inc. (2003) 113 Cal.App.4th 181, 188.)  In making these determinations, the trial
court considers the pleadings, and supporting and opposing affidavits.  (Equilon
Enterprises v. Consumer Cause, Inc., supra,
29 Cal.4th at p. 67.)  We review the
trial court’s ruling on the motion to strike independently under a de novo
standard.  (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.)  We do not weigh credibility, but accept as
true the evidence favorable to plaintiff and evaluate the defendant’s evidence
only to determine whether it defeats the plaintiff’s evidence as a matter of
law.  (Id. at p. 326.)

II.        First Prong:  Matter of Public Interest

            >A.        Public
Forum

            We
first turn to the question whether defendants’ corrections of August 4, 2011 and September 28, 2011,
respectively, were “made in a place open to the public or a public forum.”  (§ 425.16, subd. (e)(3).)  We conclude both the newspaper and the Web
site are places open to the public or public forums.

            California
Courts of Appeal disagree whether a newspaper is a public forum.  (See, e.g., Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146, 1161 [Gay and
Lesbian Times “clearly qualifies as a ‘public forum’”]; Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 478
[homeowners’ association newsletter was a public forum]; Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1130–1131 [member
association’s newsletter was not a public forum]; Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37
Cal.App.4th 855, 863, fn. 5 [in dicta, dubious whether the San Francisco
Chronicle newspaper was a public forum].)  The courts concluding a newspaper is not a
public forum have relied on the fact that editors and publishers control the
content.  (Lafayette Morehouse, Inc., at
p. 863, fn. 5.)  We agree with >Damon, at page 478, that a newspaper is a public forum.  “Read in context of the entire statutory
scheme, a ‘public forum’ includes a communication vehicle that is widely
distributed to the public and contains topics of public interest, regardless
whether the message is ‘uninhibited’ or ‘controlled.’”  (Ibid.;
see Nygord, Inc. v. Uusi-Kerttula (2008)
159 Cal.App.4th 1027, 1038.)

            A
Web site accessible to the public is a public forum for purposes of section
425.16.  (See, e.g., Barrett v. Rosenthal (2006) 40 Cal.4th 33, 41, fn. 4; >Vogel v. Felice (2005) 127 Cal.App.4th
1006, 1015; Wilbanks v. Wolk (2004)
121 Cal.App.4th 883, 895.)  As observed in
Huntingdon Life Sciences, Inc. v. Stop
Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228:  â€œStatements on [defendant’s] Web site are
accessible to anyone who chooses to visit the site, and thus they ‘hardly could
be more public.’  [Citations.]”  (Id.
at p. 1247 quoting Wilbanks, at p.
895.)  Although the content of the
International Daily News and People’s Daily Overseas Edition are strictly controlled,
the newspapers at issue here are widely disseminated to the public and contain
issues of public interest, while the Web sites can be viewed by anyone with
access to the Internet.  Therefore, they
are a public forum.

            >B.        Matter
of Public Interest

            California’s
anti-SLAPP law provides no definition of “an issue of public interest.”  As a result, courts have established guiding
principles for what distinguishes a public interest from a private one:  (1) “‘public interest’” does not equate with
mere curiosity”; (2) “a matter of public interest should be something of
concern to a substantial number of people”; “a matter of concern to a speaker
and a relatively small, specific audience is not a matter of public interest”;
(3) “there should be some degree of closeness between the challenged statements
and the asserted public interest”—“the assertion of a broad and amorphous
public interest is not sufficient”; (4) “the focus of the speaker’s conduct
should be the public interest rather than a mere effort ‘to gather ammunition
for another round of [private] controversy’”; and (5) “[a] person cannot turn
otherwise private information into a matter of public interest simply by
communicating it to a large number of people.” 
(Weinberg v. Feisel, >supra, 110 Cal.App.4th at pp. 1132–1133.)  The statement does not need to be serious or
truthful in order to concern an issue of public interest for purposes of the
anti-SLAPP statute.  To so require would “read
a separate proof-of-validity requirement into the operative sections of the
statute,” and would “‘confuse[] the threshold question of whether the SLAPP
statute [potentially] applies with the question of whether [an opposing
plaintiff] has established a probability of success on the merits.’”  (Navellier
v. Sletten (2002) 29 Cal.4th 82, 94.)

            Here,
plaintiffs’ article about a religious figure (H.H. Dorje Chang Buddha III), who
was being recognized by Buddhists worldwide as their leader, is a topic of
public interest.  Further, the context in
which the article was published—two Chinese language newspapers, one of which
was directly controlled by the Communist Party—is itself a matter of public
interest.  Thus, given this political environment
in which the article was published, the fact that those papers chose to issue
statements about the article’s publication after publishing it became a matter
of public interest.  Consequently, plaintiffs’
lawsuit is within the first prong of the anti-SLAPP statute.

            >C.        Second
Prong

            Having concluded
that defendants satisfied their burden of showing that section 425.16 applies,
we next consider whether plaintiffs have demonstrated a probability of
prevailing on their defamation and fraud claims.  We conclude that they have not.

                        >1.         Defamation

            Under
California law, libel is “a false and unprivileged publication by writing,
printing, picture, effigy, or other fixed representation to the eye, which
exposes any person to hatred, contempt, ridicule, or obloquy, or which causes
him to be shunned or avoided, or which has a tendency to injure him in his
occupation.”  (Civ. Code, § 45.)  â€œThe tort of defamation ‘involves (a) a
publication that is (b) false, (c) defamatory, and (d) unprivileged, and that
(e) has a natural tendency to injure or that causes special damage.’”  (Taus v.
Loftus (2007) 40 Cal.4th 683, 720.)

            Thus,
to state a defamation claim, plaintiff must present evidence of a statement of
fact that is provably false.  (>Milkovich v. Lorain Journal Co. (1990)
497 U.S. 1, 20 [711 L.Ed.2d 1, 110 S.Ct. 2695].)  The dispositive question after the >Milkovich case is whether a reasonable
trier of fact “could conclude that the published statements imply a provably
false factual assertion.”  (>Moyer v. Amador Valley J. Union High School
Dist. (1990) 225 Cal.App.3d 720, 724.) 
To ascertain whether the statements in question are provably false
factual assertions, courts consider the totality of the circumstances.  (Rudnick
v. McMillan (1994) 25 Cal.App.4th 1183, 1191.)  â€œâ€˜First, the language of the statement is
examined.  For words to be defamatory,
they must be understood in a defamatory
sense . . . .  [¶]  Next, the context in which the statement was
made must be considered. . . .  [¶]  This contextual analysis demands that the
courts look at the nature and full content of the communication and to the
knowledge and understanding of the audience to whom the publication was
directed.’”  (Moyer, at p. 724.)

            Here,
the August 4,
2011 statement that plaintiffs’ article was
an “advertisement” rather than a fact-based article reporting the news was not defamatory.  Plaintiffs attempt to imbue the word “advertisement,”
normally a word without any pejorative sense, with defamatory meaning based on
the context of its publication—the strict editorial environment of the
International Daily News and People’s Daily Overseas Edition.  However, plaintiffs’ argument is based upon
the flawed premise that an advertisement is necessarily untruthful.  Instead, it is paid content.  Thus, what plaintiffs actually lament is the
newspapers’ failure to editorially sanction Yang’s article; they did this by
describing it as paid content, or, an “advertisement.”  The papers’ failure to editorially sanction
the article cannot form the basis of a defamation action.  The same logic applies to the September 28, 2011 announcement.  The People’s
Daily Overseas Edition, pursuant to plaintiffs’ own admission, is controlled by
the Chinese government and would not have accepted an article on H.H. Dorje
Chang Buddha III for publication given the political environment.  Thus, its editorial statements that the
article was wrongfully placed in its paper cannot be the subject of a defamation
action.

                        2.         Fraud

            “‘The
elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation
(false representation, concealment, or nondisclosure); (b) knowledge of
falsity (or “scienter”); (c) intent to defraud, i.e., to induce reliance;
(d) justifiable reliance; and (e) resulting damage.’”  (Lazar
v. Superior Court (1996) 12 Cal.4th 631, 638.)  Fraud must be pleaded with specificity rather
than with “‘general and conclusory’” allegations.  (Small
v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.)

            Here,
plaintiffs cannot establish that they have a reasonable likelihood of
establishing that defendants engaged in any fraudulent conduct.  Plaintiffs’ fraud assertions are based upon a
nebulous conspiracy theory that they were lured into publishing their article
in papers that are mouthpieces of the Chinese government and that after falling
for the trap, Yang and BVBA were discredited. 
Aside from the fact these allegations lack sufficient particularity of
deceitful conduct, the People’s Daily Overseas Edition, pursuant to plaintiffs’
own admission, is controlled by the Chinese government and would not have
accepted such an article for publication given the political environment.

>DISPOSITION

            The order is affirmed.  Respondents are to recover their costs on
appeal.

            NOT TO BE PUBLISHED.

 

                                                                        JOHNSON,
J.

 

We concur:

 

            CHANEY, Acting P. J.

 

            MILLER, J.href="#_ftn4" name="_ftnref4" title="">*