Phan v. Vu

Filed 1/13/10 Phan v. Vu CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Franz E. Miller, Judge. Affirmed.

Hung Tan Phan, in pro. per., for Plaintiff and Appellant.

Mark S. Rosen and Dina L. Nguyen for Defendants and Respondents.

* * *

Plaintiff Hung Tan Phan appeals from a judgment entered in favor of defendants in his defamation case after the defendants successfully moved for judgment on the pleadings. Because the trial judge was correct in determining that the allegedly defamatory email that is the subject of Phans action was encompassed within the absolute litigation privilege of Civil Code section 47, subdivision (b),[1] we affirm the judgment.

I. Three Lawsuits

The instant appeal grows out of the confluence of three lawsuits.

A. Lawsuit 1, May 2006

In mid-May 2006, Hung Tan Phan filed a suit against An D. Le in Orange County Superior Court for defamation. Phan himself was the plaintiff in the suit, and represented by counsel. The background of the suit was this:

Phan, in the capacity of president of the Association of the Former Vietnamese Navy Frogmen -- we will call them the Frogmen Association -- was conducting an investigation into the profit or losses from a reunion dinner in Texas of members of the Frogmen Association. In response to Phans investigation, several members of the Frogmen Association had recently published an open letter to other Vietnamese naval veterans to the effect that Phans conduct -- apparently referring to his investigation -- had caused disunion among Vietnamese veterans and nationalists, and, in fact, was Unintentionally or intentionally helping the communist regime to destroy those Vietnamese expatriates who had never accepted that regime.

The case would come to trial about two years later, in April 2008 -- the complaint in the interim having been amended to add Dzung Anh Pho, a project engineer then living in Maryland. In that interim, in fact, the original defendant, An D. Le, living in Texas, had quashed service of the California summons there. That left Pho as the sole defendant in the case.

According to Phans own trial brief, Le had been emboldened to publish four (more) open (and allegedly defamatory) letters accusing Phan of being a supporter of the Communist government presently in power in Vietnam. For his part, Pho, in his trial brief, asserted a number of defenses, including the defenses that the original open letter that formed the basis of the complaint merely expressed nonactionable opinion, and that Phan was a vexatious litigant who had filed a multitude of lawsuits in Orange County alone seeking damages from any number of defendants, possibly because he was on a fixed income and retired and therefore hoping to one day win one or more of these lawsuits to generate money for his own gain.

There was a full trial in the case (Phan still being represented by counsel). Phan testified. Pho testified. The court found in favor of Pho. Judgment for Pho was entered in mid-May 2008.

B. Lawsuit 2, December 2006

On December 12, 2006, that is, more than six months after the filing of Phans action against Le and Pho but long before that action would come to trial, Phan had occasion, in his capacity as president of the Frogmen Association, to file a small claims action against Phuc Duy Vu and the Cuu Long Association -- we will call them, as Phan has -- the Navy Association.

The basis of the suit concerned a dispute over the proceeds of a reunion dinner of veterans of the Navy of the Republic of Vietnam. Phan, in his capacity as president of the Frogmen Association, alleged that Vu and the Navy Association had reneged on an agreement to share the proceeds of the dinner with the Frogmen Association. About a month later, in mid-January 2007, judgment was entered in this small claims action to the effect that that defendants did not owe the Frogmen Association any money on its claim.

C. Lawsuit 3, The Present Suit, July 2007

Which leads us to the present case, filed in July 2007, six months after the small claims case had been lost but more than eight months before the first lawsuit against Pho (and previously Le) would come to trial.

The present suit has the same defendants as those named in the small claims action -- Vu and the Navy Association. But instead of seeking a share of the proceeds of a reunion dinner, this suit, like the one against Le and Pho, is based on an email, sent by Vu and addressed to Le.[2]

The email was sent on December 22, 2006 -- ten days after Phan, as president of the Frogmen Association, had sued Vu and the Navy Association in small claims court. The subject line of the email was the guy Phan Hung Tan sued the Cuu Long Association. After about three paragraphs in which Vu explained his side of the story concerning the reunion dinner, the email then referenced the date of the trial in the small claims action (And we will go to court on Jan 1607. at 8;30 AM) and then made these requests (which we set out verbatim):

Please let me know if he [clearly referring to Phan] sued you in 2006 or before please give me a copy so I can show the court he was a disturber.

And please let me know if he sued you using sc-100 small claim form?

and please let me know what was the court decision? Did you go to the court and contest him?

and do you the court paper? If you do please give our association a copy to show and let the court know his real face is only the face of a Trouble maker no more no less.

The references to disturber and Trouble maker formed the core of Phans complaint for defamation.

The case came to trial in mid-December 2008, when the defendants presented a motion for judgment on the pleadings. The trial judge asked Phan several times what evidence he might produce that would show Vus email was not sent to Le in order to obtain information about the lawsuit against Le. Phans basic response was that the small claims action, involving a different nominal plaintiff than himself, could not be related to the instant defamation action that he had brought against Vu and the Navy Association. The trial judge granted the motion for judgment on the pleadings, stating that he hadnt heard a whit of evidence that the letter that forms the basis for the complaint in this action was anything other than an inquiry based upon the small claims action which was then pending.

Notice of entry of judgment was filed December 31, 2008. Within 14 days Phan filed a motion to set aside the judgment, based on new evidence that Vu had supposedly admitted he sent his email with malice. The set aside motion was denied on February 19, in part because Phans new evidence should have been presented at the time of trial. A formal order thereon was made February 26, and Phan filed this appeal on March 3.

II. This Appeal

We first outline the law as regards the litigation privilege. As our Supreme Court has said: The litigation privilege of Civil Code section 47, subdivision (b) (section 47(b)), generally protects from tort liability any publication made in connection with a judicial proceeding. (Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 952.)

The Jacob B. case is illustrative of the sort of connection between a letter and a judicial proceeding that satisfies the requirements section 47s absolute litigation privilege. There was a family law proceeding, in which a couple were asking the family law court to lift restrictions previously put in place preventing any contact between their three sons and the husbands brother and the brothers grandparents. However, the husbands brother had previously been accused, though not prosecuted, for the crime of molesting another couples son, and that son just happened to be the nephew of the husbands brother.

The sons mother, alarmed at the prospect that her sons uncle might somehow, if the restrictions were lifted, obtain access to her son, went to county social workers working in what was known as the Victim Witness unit. It turned out that while the uncle had not been prosecuted for molestation of his nephew, the nephew had still been given a large amount of counseling services because of the alleged molestation. The supervisor in the Victim Witness unit then wrote a letter to the court stating that the mother had established a claim for her son as the victim of his uncles child molestation. (Jacob B., supra, 40 Cal.4th at pp. 953-954.) The uncle then sued the county based on its social workers letter, but the Supreme Court would ultimately hold that the letter was completely within the section 47 litigation privilege. In particular,

the high court held that the letter was from a witness/participant in the family law proceeding, and furthered the objects of that proceeding since the information it conveyed had relevance to a family law visitation dispute. (Id. at p. 956, quoting opinion of the appellate court.)

In the case before us, Phan asserts that Vus email of December 22 to Le does not come within the section 47 litigation privilege because it did not further the objects of the small claims litigation and did not have a connection or logical relation to the small claims litigation. At the core of Phans argument is the assumption that because Phan himself was not the plaintiff in the small claims action, Vus letter to Le could not have been connected to, or had a logical relation with, or furthered Vus defense of, the small claims action.

The assumption is untenable. Phan himself had sued Le in lawsuit number one because of what Le had been emboldened to publish about Phan in connection to a dispute about the proceeds of a reunion dinner. Then Phan, acting on behalf of the Frogmen Association, sued Vu, also concerning a dispute about the proceeds of a reunion dinner.

The common thread in the case before us is defamation claims arising out of disputes over the proceeds of reunion dinners. Phans personal tie to the small claims action, even if filed nominally on behalf of the Frogmen Association, is, if anything, stronger than the tie of the social workers in Joshua B. to the family law proceeding there at issue. After all, in Joshua B. the letter-writer was only a sympathetic supervisor acting out of regard for a party, and not the party herself. It was thus quite logical of Vu to make the obvious link between Phans behavior in regard to reunion dinners as it related to Le with the small claims lawsuit he now found filed against him.

An unincorporated association, like the Frogmen Association, can only act through its officers, agents, or employees. (See J. R. Norton Co. v. General Teamsters, Warehousemen & Helpers Union (1989) 208 Cal.App.3d 430.) Thus the facts in the case before us show that it was Phan himself, and not some other officer or director,who caused the Frogmen Association to file the small claims action against Vu and the Navy Association.

In short, there was a high degree of connection between (1) Vus email; (2) Vus need to prepare a defense of the small claims suit that had just been filed against him by Phan as the human agent behind the Frogmen Association; and (3) the earlier suit filed by Phan himself against Le.

We need only add that in Contemporary Services Corp. v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043, this court observed that an email by the president of a business to its customers who had some involvement in an ongoing unfair competition action was itself within section 47s goal of providing the utmost freedom of access to the courts without [the] fear of being harassed subsequently by derivative tort actions. (Id. at p. 1055, quoting Healy v. Tuscany Hills Landscape & Recreation Corp. (2006) 137 Cal.App.4th, 1, 5-6.)

If a litigation update to mere customers of a party comes within the rubric of the section 47 litigation privilege, how much more does a direct inquiry for information to be used in ongoing litigation come within the privilege.

Finally, it makes no difference that Phan belatedly presented evidence that Vu may have acted maliciously in sending Le the December 22 email: Our Supreme Court has made it very clear that the section 47 litigation privilege protects even malicious communications: The purposes of section 47, subdivision (b), are to afford litigants and witnesses free access to the courts without fear of being harassed subsequently by derivative tort actions, to encourage open channels of communication and zealous advocacy, to promote complete and truthful testimony, to give finality to judgments, and to avoid unending litigation. . . . Another purpose is to promote[] effective judicial proceedings by encouraging full communication with the courts. . . . To further these purposes, the privilege has been broadly applied. It is absolute and applies regardless of malice. (Joshua B., supra, 40 Cal.4th at p. 955, italics added.)

Phan is thus incorrect that a communication must be made without malice in order to qualify (to use the word from his briefs) for section 47 litigation privilege protection. Even a communication made with malice may qualify for the privilege.

III. The Disposition

The judgment is affirmed. Defendants shall recover their costs on appeal.

SILLS, P. J.

WE CONCUR:

RYLAARSDAM, J.

IKOLA, J.

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[1] All references to section 47 in this opinion will be to the Civil Code.

[2] The to line lists two addressees: andinhle and nxd. However, the salutation in the body is solely to Senior Le Dinh An.