Filed 3/24/20 Kang v. Korean American Community Center etc. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

SEUNG KU KANG,

Plaintiff and Respondent,

v.

KOREAN AMERICAN COMMUNITY CENTER OF SAN FRANCISCO & BAY AREA et al.,

Defendants and Appellants.

A155227

(City & County of San Francisco Super. Ct. No. CGC18565160)

In this defamation action, plaintiff Seung Ku Kang alleges that defendants Young Jin Bae and Sung Ho Cho (appellants) and their co-defendants published a newspaper advertisement containing defamatory statements about him in his role as president of the Korean American Community Center of San Francisco and the Bay Area (KACCSF), including claims that he embezzled money from the organization. Appellants filed a special motion to strike the complaint under the anti-SLAPP law (Code Civ. Proc., § 425.16), which the trial court denied after finding that Kang showed a probability of prevailing on his defamation cause of action. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

At all relevant times, appellants, Ted Tae Hyun Kim, and Tanya Kwinam Woo were members of the board of directors of KACCSF, a community organization serving the Korean American community in the San Francisco Bay Area. The organization owns a building in San Francisco where it operates a community center. KACCSF also holds various events and cultural activities, including an annual “Korean Cultural Day,” and it sponsors cultural exchanges with its sister city of Gongju City in South Korea. In March 2017, Kang was elected president of KACCSF.

The Complaint

In 2018, Kang filed a complaint against appellants, KACCSF, Kim, and Woo (collectively, defendants) asserting one cause of action for defamation. In paragraph 12 of the complaint, Kang alleges that on or about February 15, 2018, defendants made several unprivileged statements in a full-page advertisement published in The Korea Times. The complaint did not attach a copy of the publication; rather, paragraph 12 of the complaint set forth translations of the allegedly defamatory statements contained in the advertisement.

These statements may be summarized as follows: (1) a general meeting addressing “misappropriation of public money and use of public money” would be conducted on March 10, 2018, at the San Francisco Korea Meeting Hall; (2) though the board insisted on disclosing certain “financial problems” with regard to KACCSF’s 24th Korean Cultural Day event, Kang “insisted there was no rush”; (3) an audit investigation found that $8,000 was not deposited into a community trust fund but was transferred directly to Kang; (4) Kang claimed this money was paid to him as an “effort fee” and “was not for the event”; (5) Kang said he would “take responsibility” but was not consistent; (6) after “unnecessarily” using $27,000 in funds and failing to explain these expenditures during a 15-day “explanatory period” offered by the KACCSF board, Kang was suspended as president; (7) Kang should “[k]now the importance of public funds,” return the $8,000 to the Korean community, “[m]ake protocols for the unnecessarily used fault fund” of $11,600, admit his fault and apologize, and return “some missing equipment” including a computer that he “took” from the KACCSF building; (8) Kang was “reported to be prosecuted for the misappropriation of public money” and for “destruction and manipulation of evidence and business obstruction”; (9) Kang’s wife “used rental fees and it was reported”; and (10) “From now on, we hope [Kang] does not use and give away false information to the Korean Community.”

The complaint further alleges that defendants understood these statements to mean that Kang was defective in character and untrustworthy, and that he was a criminal, thief, and liar. Defendants allegedly failed to use reasonable care to determine the falsity of their statements, and they acted with malice, oppression, fraud, and conscious disregard of the truth, causing harm to Kang.

The Anti-SLAPP Motion

Only two of the defendants—appellants Bae and Cho—filed an anti-SLAPP motion, contending that the alleged defamatory statements constituted protected activity and that Kang could not establish a probability of prevailing on his defamation claim. On the latter point, appellants argued Kang could not prove appellants’ malice by clear and convincing evidence, which they contended was required because Kang was a limited purpose public figure and also because the challenged statements were privileged under Civil Code section 47, subdivision (c).

In support of their motion, appellants submitted a certified translation of the allegedly defamatory full-page advertisement from The Korea Times. Additionally, appellants each submitted declarations generally stating the factual allegations contained in the certified translation were true.

According to Bae, KACCSF provides services and activities for youth and the elderly in the “Korean American community of the Bay Area, which currently stands at approximately 100,000.” Bae estimates that “[s]everal thousand members” of the Korean-American community directly participate and benefit from KACCSF’s services. In December 2018, the KACCSF board suspended Kang upon determining he “had wrongfully taken money intended for KACCSF.” Bae contacted The Korea Times to run the advertisement in the February 15, 2018, edition after “the board of directors voted to conduct an open, public meeting in order to publicly discuss Mr. Kang’s misappropriation, to address perceptions in the Korean American community that the KACCSF was being mismanaged and to discuss the board’s action in reporting the misappropriation to the San Francisco Police Department.” Approximately 100 persons attended the meeting addressing Kang’s “embezzlement and malversation of public funds” and the impact it would have on KACCSF’s finances, reputation, and future fundraising.

According to Cho, the KACCSF board audited the results of fundraising for the Korean Cultural Day event and discovered that $8,000 in publicly raised funds “was not deposited into the KACCSF account but [was] taken by” Kang. The audit also raised “questions about the propriety of $27,000 of KACCSF expenditures [Kang had] authorized,” including a $6,000 check made payable to Kang to pay performers who had never previously requested payment. Additionally, rents collected from the building’s tenants were “unaccounted.” Cho states Kang failed to provide an explanation after given an opportunity to do so, and the board suspended him as president in early December 2018. Later that month, KACCSF board members reported “Kang’s misappropriation of KACCSF funds” to the police, and according to Cho, “the investigation currently is ongoing.”

Kang’s Opposition

In opposing the motion, Kang argued that appellants failed to show the complaint arose from protected activity because The Korea Times advertisement was not made in connection with an issue of public interest, but rather, concerned a private matter between members of a local community organization. Kang further contended he is not a limited purpose public figure because he did not voluntarily involve himself in any public controversy. Finally, Kang argued that appellants’ malice can be shown circumstantially by their anger and hostility towards him, as well as their reliance upon sources known to be unreliable.

Kang also submitted a declaration stating in relevant part that he did not convert $3,260 for his own use, but rather, was reimbursed for expenses for his travels from Gongju City to San Francisco. He further stated he did not keep $2,000 that KACCSF had raised to help Houston flood victims, but rather, tried to send the money to the Korean American Society in Houston in 2017 but was unable to do so because “Cho closed the bank account and took the money when [Kang] was in the hospital.” Kang also denied keeping $5,000 that the Republic of Korea gave to KACCSF in September 2017. As for a $3,000 check that Kim had written out to him, Kang stated that “was for the Korean Festival on September 30, 2017.” Kang further disputed that he wrote a $6,000 check out to himself for personal use, claiming he paid this amount in cash to festival performers. As to the accusation that he took a computer from the KACCSF building, Kang said the computer belonged to him. He also denied he stole a rent check, explaining that he properly received the tenant’s rent check before Cho closed the trust account, and that he (Kang) was unable to deposit the check, so he deposited it another account. According to Kang, he has never been prosecuted for any wrongdoing.

Hearing and Order

The trial court heard argument from the parties and denied appellant’s anti-SLAPP motion. The court also issued oral rulings sustaining most of appellants’ objections to Kang’s declaration and refused to accept the evidence that appellants submitted with their reply papers.

In its order denying the anti-SLAPP motion, the trial court found that appellants had satisfied their burden under the first anti-SLAPP prong by showing that The Korea Times advertisement was made in a public forum in connection with an issue of public interest. However, the court also determined that Kang had shown sufficient merit in his defamation claim because his declaration, “which denies the charges, presents sufficient evidence of malice to require that the malice issue be resolved by the trier of fact. Even if Mr. Kang is a limited public figure, which is disputed because he did not voluntarily thrust himself into a public issue, his declaration is sufficient to show a triable issue regarding actual malice.”

DISCUSSION

Section 425.16 authorizes a special motion to strike claims arising from any act “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.” (§ 425.16, subd. (b)(1).) This so-called anti-SLAPP statute “allows defendants to request early judicial screening of legal claims targeting free speech or petitioning activities” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 880–881), and its provisions must be construed broadly (§ 425.16, subd. (a)).

Resolution of an anti-SLAPP motion involves two steps. First, the moving defendant must show that the challenged claim arises from constitutionally protected free speech or petition rights. (Baral v. Schnitt (2016) 1 Cal.5th 376, 381–382, 396 (Baral).) If the defendant makes the requisite showing at the first stage, the burden then shifts to the plaintiff to demonstrate the claim’s merit by establishing a probability of success. (Id. at p. 396.) We review de novo the decision to deny an anti-SLAPP motion. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325–326 (Flatley).)

Although Kang prevailed in opposing appellants’ motion, he argues on appeal that appellants did not carry their initial burden under the anti-SLAPP law to show the complaint arises from protected activity. In response, appellants maintain the complaint arises from their publication of The Korea Times advertisement, which constituted protected activity under section 425.16, subdivisions (e)(2), (e)(3), and (e)(4). We need not engage in the first step of the anti-SLAPP analysis, and we instead proceed directly to the second step of the analysis. As we shall explain, even assuming The Korea Times publication arose from protected activity, we conclude the trial court properly denied the anti-SLAPP motion because Kang has established a probability of prevailing on the merits of his defamation claim. (See Southern Gas Co. v. Flannery (2014) 232 Cal.App.4th 477, 485.)

To establish a probability of prevailing in the anti-SLAPP context, a plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment. (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) This is a “ ‘summary-judgment-like procedure.’ [Citation.] The court does not weigh evidence or resolve conflicting factual claims. . . . It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. [Citation.] ‘[C]laims with the requisite minimal merit may proceed.’ ” (Baral, supra, 1 Cal.5th at pp. 384–385.)

The elements of defamation are: “(1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.’ ” (John Doe 2 v. Superior Court (2016) 1 Cal.App.5th 1300, 1312.) “ ‘The sine qua non of recovery for defamation . . . is the existence of falsehood.’ ” (Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 384.) In determining whether a publication has a defamatory meaning, we apply a totality of the circumstances test to review the meaning of the language in context and its susceptibility of the meaning alleged by the plaintiff, as defamation actions cannot be based on snippets taken out of context. (Balzaga v. Fox News Network, LLC (2009) 173 Cal.App.4th 1325, 1337–1338.)

As discussed, the complaint contains several translated statements from The Korea Times advertisement. Although some of these alleged statements were not susceptible of a defamatory meaning on their own, they combined to accuse Kang of embezzling and misusing KACCSF funds, being dishonest about the reasons he received certain funds, and stealing equipment from the KACCSF building in order to destroy evidence of his wrongdoing. These accusations had a natural tendency to injure Kang in his reputation and occupation. Thus, Kang sufficiently alleged that the advertisement as a whole was capable of a defamatory meaning.

Kang’s declaration established a prima facie showing that he was properly reimbursed for the travel expenses, that he appropriately used other amounts of KACCSF funds in connection with organizational events, and that in other situations, he was prevented from properly allocating KACCSF funds for reasons outside of his control. If the evidence is credited, it would tend to show the falsity of the advertisement’s claims that Kang embezzled, misappropriated, and unnecessarily used organizational funds.

Appellants nevertheless contend that Kang’s showing was insufficient because he did not meet the heightened standard for constitutional malice that is required of so-called “limited purpose public figures.” They further argue that the common interest privilege (Civ. Code, § 47, subd. (c)) provides a complete defense to Kang’s defamation claim. As discussed below, neither point is persuasive based on the record before us.

A. Limited Purpose Public Figure
B.
A plaintiff who is a limited purpose public figure must prove by clear and convincing evidence that the defendant made the objectionable statement with knowledge of its falsity or with reckless disregard of the truth or falsity of the statement. (See Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 256 (Reader’s Digest).) This heightened standard of proof for malice must be taken into account in an anti-SLAPP motion. (Walker v. Kiousis (2001) 93 Cal.App.4th 1432, 1446.)

The prerequisites for establishing a plaintiff as a limited purpose public figure are as follows. “First, there must be a public controversy, which means the issue was debated publicly and had foreseeable and substantial ramifications for nonparticipants. Second, the plaintiff must have undertaken some voluntary act through which he or she sought to influence resolution of the public issue. In this regard it is sufficient that the plaintiff attempts to thrust him or herself into the public eye. And finally, the alleged defamation must be germane to the plaintiff’s participation in the controversy.” (Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569, 1577.)

As the trial court found, there was no evidence that Kang had voluntarily thrust himself into a public issue. By itself, Kang’s alleged wrongdoing—even if it involved criminal theft of public funds—did not turn him into a limited purpose public figure. (See Reader’s Digest, supra, 37 Cal.3d at p. 254 [person is not public figure “solely because that person or group is a criminal defendant . . . or merely happens to be involved in a controversy that is newsworthy”].) And although The Korea Times advertisement stated that Kang took inconsistent positions when confronted with the allegations, there is no evidence in the record that he did so publicly and voluntarily in order to influence the public’s view of the matter.

Appellants argue that Kang became a limited purpose public figure by repeatedly giving press interviews in which he attempted to explain his receipt of the funds at issue. In support, they cite to evidence submitted with their reply papers below—evidence that the trial court refused to consider. Specifically, appellants submitted translations of a November 6, 2017, article in The Korea Times reporting that Kang claimed to have received only $840 in travel expenses, and translations of a November 23, 2017, article in the publication Hyundae News USA reporting that Kang claimed the money was a gift, not a travel reimbursement. Appellants contend the trial court erred in refusing this evidence because the evidence did not raise new issues but simply “filled in gaps in the evidence created by” Kang’s declaration. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1536–1538 (Jay).)

We disagree. The new evidence attempted to fill gaps in appellants’ own evidence. Appellants briefed the limited purpose public figure issue in their moving papers, but they provided no evidence in their moving papers of Kang’s voluntary attempts to influence the public. It was only after Kang raised this deficiency in opposition that appellants belatedly submitted the evidence with their reply. Appellants’ decision to wait until the reply to bring forth any evidence of Kang’s voluntary acts—when Kang would have no opportunity to respond—was unfair, and the trial court properly refused to consider it. (Jay, supra, 218 Cal.App.4th at p. 1538.)

In any event, it is unclear from the proffered translations whether Kang was directly interviewed or if the media outlets were simply reporting on prior non-public explanations he may have given. Moreover, the record otherwise offers no basis for concluding that Kang had voluntarily sought out these media outlets in order to influence the public’s view.

Because there appear triable issues of material fact as to whether Kang qualified as a limited purpose public figure, we conclude he was not required, on the second step of anti-SLAPP motion, to submit evidence establishing a probability of proving appellants’ malice.

C. Common Interest Privilege
D.
We next consider whether, as appellants assert, the common interest privilege (Civ. Code, § 47, subd. (c)) provides a complete defense to Kang’s defamation claim in light of Kang’s purported failure to present sufficient evidence of malice.

As a preliminary matter, we note appellants’ counsel argued at oral argument that the common interest privilege unquestionably applies in this case because, although Kang’s counsel disputed its applicability during argument, Kang did not do so in the proceedings below or in his appellate briefing. Privilege, however, is an affirmative defense to defamation (Beroiz v. Wahl (2000) 84 Cal.App.4th 485, 492), and in making an anti-SLAPP motion, it stands to reason that the defendant bears the initial burden of establishing the privilege’s applicability in its moving papers before the burden of showing malice shifts to the plaintiff. (Taus v. Loftus (2007) 40 Cal.4th 683, 721 (Taus); Mann v. Old Time Quality Service, Inc. (2004) 120 Cal.App.4th 90, 109 [in second step of anti-SLAPP analysis, burden to show malice did not shift to plaintiff because defendants failed to meet their burden of establishing allegedly defamatory statements were protected under common interest privilege], disapproved on other grounds in Baral, supra, 1 Cal.5th at p. 396 & fn. 11.) For the reasons below, appellants failed to show an absence of triable issues on this initial showing.

The common interest privilege applies to any “communication, without malice, to a person interested therein, . . . by one who is also interested.” (Civ. Code, § 47, subd. (c).) As used in the statute, an “interested” person refers to a person with a “ ‘direct and immediate concern’ ” in the subject matter of a communication, that is, “ ‘th[e] concern is something other than mere general or idle curiosity of the general readership of newspapers and magazines.’ ” (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 736–737 (Brown).) As the Brown decision explained, “the Legislature intended to codify the narrow common law privilege of common interest, not to create any broad news-media privilege.” (Id. at p. 727.) Thus, the privilege may be lost if the defendant abuses the privilege by excessive publication. (Deaile v. General Telephone Co. of California (1974) 40 Cal.App.3d 841, 847 (Deaile).)

The common interest privilege has generally been applied to communications between members of a common group, such as a union (De Mott v. Amalgamated Meat Cutters (1958) 157 Cal.App.2d 13, 27) or a church (Brewer v. Second Baptist Church (1948) 32 Cal.2d 791, 793), as well as to statements by employees and management regarding workplace matters (McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1538.) It has also been applied to statements made at conferences and meetings (Taus, supra, 40 Cal.4th at p. 721 [professional conference]; Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1197 [seminar regarding horse breeding]; McMann v. Wadler (1961) 189 Cal.App.2d 124, 126 [meeting of nonprofit corporation’s members]), and to letters raising complaints about an organization’s members or agents (Hicks v. Richard (2019) 39 Cal.App.5th 1167, 1172–1173 [letter complaining about parochial school principal to church officials responsible for the school’s oversight]; Katz v. Rosen (1975) 48 Cal.App.3d 1032, 1035 [complaint letter to local bar association regarding attorney member].)

The communication at issue here resembles none of these cases. Appellants seek to invoke the common interest privilege not for the protection of communications between KACCSF and its membership and leaders, but to protect a full-page advertisement taken out by defendants in a third-party newspaper whose reporting presumably extended to any number of topics and matters not involving KACCSF. Notably, the record offers no basis for determining that the entire readership of The Korea Times had a “direct or immediate” interest in the contents of the advertisement that went beyond general or idle curiosity. (Brown, supra, 48 Cal.3d at pp. 736–737.) At best, the record supports the inference that “[s]everal thousand members” of the Korean-American community in the San Francisco Bay Area were, due to their involvement in KACCSF services or funding, “interested” parties for purposes of the common interest privilege. But as the record also discloses, the advertisement reached potentially far beyond this group. The Korea Times advertisement was addressed not just to those using or funding KACCSF services but also to all “Esteemed Korean Americans in Northern California,” a population appellants estimate to include approximately 100,000 persons.

To bolster their position, appellants cite Tschirky v. Superior Court (1981) 124 Cal.App.3d 534 (Tschirky). In that case, the defendant was a candidate for county supervisor who published a campaign advertisement in local newspapers claiming that the plaintiff (a union official) sought a “pledge [of] allegiance to Caesar Chavez” as a condition for the union’s support of the defendant’s campaign. (Tschirky, supra, 124 Cal.App.3d at p. 536.) Without extended discussion, the court concluded the “fair comment” privilege applied because the advertisement “was directed toward voters, parties who were interested in the contents of the communication.” (Id. at p. 538, italics added.)

Appellants’ reliance on Tschirky is misplaced. In concluding the fair comment privilege applied because voters reading the advertisement qualified as interested parties, Tschirky relied on Snively v. Record Publishing Co. (1921) 185 Cal. 565 (Snively). But the California Supreme Court has described Snively as “speaking narrowly of a public interest in the official conduct of public officials, not a privilege as to every person or subject in which there might be some public interest.” (Brown, supra, 48 Cal.3d at p. 732.) Here, there was no evidence that Kang was a public official or that he committed the conduct at issue in an official capacity. Moreover, in Brown, the Supreme Court clarified that the fair comment defense exists independent of the statutory common interest privilege, and the court disapproved of language in Snively and other cases indicating that the former is included within the latter. (Brown, at p. 732, fn. 18; Weller v. ABC (1991) 232 Cal.App.3d 991, 1004, fn. 12.) Thus, Tschirky provides no support for appellants’ invocation of the common interest privilege under Civil Code section 47, subdivision (c).

In sum, appellants did not establish the applicability of the common interest privilege because triable issues of material fact remain as to whether the challenged publication was made to “interested” persons within the meaning of Civil Code section 47, subdivision (c), and whether the privilege was lost by excessive publication. (See Deaile, supra, 40 Cal.App.3d at p. 847.) Accordingly, the burden did not shift to Kang to make a probable showing of appellants’ malice, and Kang’s showing of merit on his defamation claim was sufficient to withstand early judicial screening under the anti-SLAPP law. (Baral, supra, 1 Cal.5th at pp. 384–385.)

DISPOSITION

The order denying the anti-SLAPP motion is affirmed. Kang is entitled to recover his costs on appeal.

 

_________________________

Fujisaki, J.

WE CONCUR:

_________________________

Siggins, P.J.

_________________________

Jackson, J.

A155227