Yang v. Az Chinese News ( 2015 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
WENTIAN YANG, Plaintiff/Appellant,
v.
ARIZONA CHINESE NEWS, L.L.C.; KIM UNG; JENNY UNG; SHUO
QIN ZEHN, Defendants/Appellees.
No. 1 CA-CV 14-0080
FILED 5-19-15
Appeal from the Superior Court in Maricopa County
No. CV2013-000842
The Honorable David O. Cunanan, Judge
AFFIRMED
COUNSEL
HopkinsWay PLLC, Phoenix
By Edward C. Hopkins, Jr.
Counsel for Plaintiff/Appellant
Tiffany & Bosco, P.A., Phoenix
By William M. Fischbach
Counsel for Defendants/Appellees Arizona Chinese News and Shuo Qin Zhen
Wong Fujii Carter P.C., Phoenix
By Rick K. Carter, Matthew A. Klopp, Susan Larsen
Counsel for Defendants/Appellees Kim and Jenny Ung
YANG v. AZ CHINESE NEWS
Decision of the Court
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Maurice Portley joined.
T H O M P S O N, Judge:
¶1 Wentian Yang appeals from the judgment dismissing his
defamation and related claims against defendants Arizona Chinese News,
L.L.C. (ACN) and Shuo Qin Zhen. For the reasons that follow, we affirm.
BACKGROUND
¶2 As alleged in the complaint, Yang, an international
businessman, assisted the Chinese Consulate General in conducting a
passport renewal event at the Chinese Cultural Center in Phoenix on
November 17, 2012. Kim Ung attended the event with Wu Yi, Yang’s 95-
year-old wheelchair-bound aunt, and distributed to other attendees a letter
(Letter) Ung and his wife had written. Referring to Yang, the Letter,
translated from Chinese, states:
He has seized the land in our village (Quanzhou Lichen
District) in which we had invested a large amount of funds.
He falsely claimed the communist government had
confiscated the land, according to the policy of reclaiming
unused land that remained fallow for years, as the reason and
attempted to use horrible methods to forcibly rob the land to
reach his own purpose.
Heavens, he made up the lie.
Every month he receives a large rental amount from it.
He is really a big liar and a villain.
Do not ever trust Wen Tian anymore, as a transnational
swindler, to avoid fraud.
¶3 Ung also photographed Wu Yi at the event wearing a sign that
read:
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Decision of the Court
Wen Tian Yang
Lying Shamelessly
Fraud Scam
Uses Public Office for Private Gain
Oversees Chinese Scam
¶4 Ung distributed copies of the Letter and the photograph to
media sources, including ACN. ACN subsequently published an article on
November 21, 2012 that contained the photograph and the text of the Letter
(November 21 Article). An ACN-edited version of the Letter (Edited Letter)
also appeared in the November 21 Article. The Edited Letter stated:
He misused our land investment in Quanzhou, Fujian
Province as the reason to swindle over many years around a
hundred thousand dollars from my children.
He even cheated me of my “coffin expense” savings.
Finally, Wen Tian Yang falsely claimed the local government
had confiscated the land as a reason and attempted to use
horrible methods to forcibly rob our investment money.
He fabricated lies.
He has cheated us for ten years.
He took the huge rental income for himself.
Do not ever trust Wen Tian Yang, the liar.
¶5 In a written response (Yang’s Response) that was posted on
two Chinese language websites, one of which was ACN’s, Yang challenged
the November 21 Article’s veracity and the lawfulness of its publication by
ACN. ACN published a reply to Yang’s Response on November 28, 2012,
explaining as follows: “We reported the contents provided. We do not
know what happened prior. The reporter was not present when the
incident occurred. The picture was taken in public before many witnesses.”
(November 28 Reply).
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¶6 Yang subsequently filed a complaint against the Ungs, ACN,
and ACN’s president, Zhen (ACN and Zhen, collectively, ACN
Defendants). Based on the November 21 Article and the November 28
Reply, Yang sought punitive damages and asserted the following claims
against the ACN Defendants: (1) defamation; (2) false light invasion of
privacy; (3) tortious interference with business relations; and (4) aiding and
abetting.1 The ACN Defendants successfully moved under Arizona Rule of
Civil Procedure 12(b)(6) (Rule 12(b)(6)) to dismiss the claims against them
that were based on the November 21 Article. According to the parties, the
court dismissed the claims after finding the November 21 Article is subject
to the “fair reporting privilege.”2
¶7 Upon completing discovery, the ACN Defendants moved for
summary judgment on the remaining claims. They raised the following
three bases for relief: (1) Yang became a “limited purpose public figure” by
publishing his Response; (2) the November 28 Reply constituted the ACN
Defendants’ “subjective impression and opinion” of Yang’s Response; and,
(3) the November 28 Reply is subject to the self-interest privilege. The court
granted the motion3 and entered judgment in accordance with Arizona
Rule of Civil Procedure 54(b). Yang appealed. We have jurisdiction
pursuant to Arizona Revised Statutes sections 12-120.21(A)(1) (2003), -
2101(A)(1) (Supp. 2014).
DISCUSSION
I. Motion to Dismiss: Yang’s Claims re November 21 Article
¶8 Yang argues the court erred in applying the fair reporting
privilege and dismissing the defamation and false light claims that arose
from the November 21 Article. Alternatively, Yang contends the ACN
Defendants abused the privilege by acting with actual malice or through
excessive publication.
1 Yang raised additional claims against the Ungs only.
2 The court dismissed the claims “for the reasons set forth on the
record.” The transcript from the oral argument at which the court issued
its order is not in the record on appeal.
3 Again, we cannot review the court’s “on the record” reasons for
granting summary judgment because the transcript from the argument on
the motion is not in the record before us.
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¶9 Dismissal under Rule 12(b)(6) is proper when “as a matter of
law . . . plaintiffs would not be entitled to relief under any interpretation of
the facts susceptible of proof.” Coleman v. City of Mesa, 230 Ariz. 352, 356, ¶
8, 284 P.3d 863, 867 (2012) (citation omitted). Consequently, we review a
trial court’s 12(b)(6) dismissal de novo. Id. Specifically, in a defamation
case, the existence and scope of any privilege are questions of law that we
review de novo. Sobol v. Alarcon, 212 Ariz. 315, 317 n.2, ¶ 10, 131 P.3d 487,
489 n.2 (App. 2006). Our examination is limited to the pleading itself.
Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7, 189 P.3d 344, 346
(2008). We will “assume the truth of the well-pled factual allegations and
indulge all reasonable inferences therefrom.” Id. However, “mere
conclusory statements are insufficient to state a claim upon which relief can
be granted.” Id.
¶10 The conditional fair reporting privilege provides immunity
for defamatory publication of “a report of . . . a meeting open to the public
that deals with a matter of public concern . . . .” Restatement (Second) of
Torts (Restatement) § 611 (1977); see also Green Acres Trust v. London, 141
Ariz. 609, 618, 688 P.2d 617, 626 (1984) (applying Restatement § 611). The
scope of the privilege allows “[a]nyone [to] describe what transpired at a
public proceeding so long as the publisher provides a fair and accurate
rendition.” Green Acres Trust., 141 Ariz. at 618, 688 P.2d at 626. Thus, abuse
of the privilege occurs only when the publisher does not give a fair and
accurate report of the proceeding. Restatement § 611 cmt. a. Furthermore,
“the privilege exists even though the publisher himself does not believe the
defamatory words he reports to be true and even when he knows them to
be false.” Id.
¶11 Here, ACN’s publication of the Letter and photograph of the
displayed sign in the November 21 Article falls within the fair reporting
privilege. As alleged in the complaint, ACN merely published the Letter
and photograph that Ung sent to the newspaper. Other members of the
public that attended the passport event could learn and see for themselves
the Letter’s and sign‘s statements; thus, ACN was “merely a substitute for
the public eye.” Green Acres Trust, 141 Ariz. at 618, 688 P.2d at 626.
Consequently, ACN’s publication of the Letter and the photograph of the
sign is a “fair and accurate rendition” of their respective statements.
Additionally, the complaint does not allege the passport event was private
or otherwise closed to the public. Indeed, the event’s title—“Chinese
Passport Renewal Event”—indicates the event was open to all Chinese
nationals seeking to renew their passports, a purpose which is certainly a
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matter of public interest.4 See id. (noting, “If the proceeding is genuinely
open, so that the speaker sees what any member of the public could have
seen, and the meeting deals with a matter of public interest, the privilege
applies.”).
¶12 Regarding the Edited Letter in the November 21 Article, Yang
argues it is “materially different” from the Letter because it raises the
following “three new allegations” not found in the Letter: (1) Yang
swindled approximately $100,000; (2) Yang cheated Wu Yi out of her “coffin
expenses”; and (3) Yang cheated his family for ten years. Yang contends
these differences show that the Edited Letter does not fairly and accurately
describe the events described in the Letter. We disagree.
¶13 As noted, for the fair reporting privilege to apply, the report
must be fair and accurate. Supra ¶ 10. “Accuracy means ‘substantially
correct,’ while fair means balanced.” Green Acres Trust, 141 Ariz. at 618, 688
P.2d at 626 (citation omitted). In considering whether a report is fair and
accurate, “a court must determine whether the report of the public
proceeding carries a ‘greater sting’ in defamatory content than the original
publication during the proceeding.” Id. at 619, 688 P.2d at 627 (citation
omitted).
¶14 Here, the Letter and the sign worn by Wu Yi constitute the
original publication. Thus, we must determine whether the Edited Letter’s
defamatory content carries a “greater sting” than the Letter and sign. We
agree with Yang that the Edited Letter contains allegations that are not
contained in the Letter or the sign. However, the differing allegations
merely provide more detail regarding instances of Yang’s alleged “fraud”
and “swindling.” For example, the Edited Letter states Yang swindled
approximately $100,000 in addition to Wu Yi’s savings for coffin expenses
and that he “cheated us for ten years.” The Letter and sign generally allege
Yang is a “transnational swindler” and “a big liar and a villain” who
fraudulently seized others’ land in China. We discern no “greater sting”
attributable to the detailed allegations in the Edited Letter compared to the
general statements contained in the Letter and sign. Accordingly, the Edited
4 The title of the November 21 Article is: “95 year old lady sits in a
wheel chair at her nephew’s location wearing the complaint to fight for
justice.” Consequently, it appears ACN considered as newsworthy not the
substance of the defamatory statements, but the fact that Yang’s aunt was
publicly displaying the sign at the passport event.
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Letter is fair and accurate and therefore subject to the fair reporting
privilege.
¶15 For the above-stated reasons, the November 21 Article is
subject to the fair reporting privilege.
¶16 We also reject Yang’s assertion that the ACN Defendants
abused the fair reporting privilege because they published the November
21 Article with actual malice towards Yang and they excessively published
the article.
¶17 In an effort to establish that the ACN Defendants abused the
fair reporting privilege, Yang makes a great deal of their “actual malice” in
publishing the November 21 Article. However, he cites no authority for the
proposition that a publisher’s actual malice somehow renders the fair
reporting privilege inapplicable. The cases he does cite do not address what
effect, if any, actual malice has on the viability of a defense based on the fair
reporting privilege. See Currier v. W. Newspapers, Inc., 175 Ariz. 290, 293, 855
P.2d 1351, 1354 (1993) (“substantial truth” defense to defamation claim);
Green Acres Trust, 141 Ariz. at 616-18, 688 P.2d at 624-26 (discussing
conditional privileges in general and noting publication with actual malice
abuses such privileges; further noting fair reporting privilege is “special”
because publisher may make knowingly false defamatory statements
without abusing the privilege); Lewis v. Oliver, 178 Ariz. 330, 335, 873 P.2d
668, 673 (App. 1993) (communications to public officials regarding the work
of their subordinates is subject to conditional privilege). Absent such
authority, we are not persuaded that actual malice applies to show abuse of
the special reporting privilege especially given that the privilege permits
publication of information the publisher knows is false, which is a factor in
determining actual malice in cases where other conditional privileges are
asserted. See Heuisler v. Phoenix Newspapers, Inc., 168 Ariz. 278, 282, 812 P.2d
1096, 1100 (App. 1991) (“Proof of actual malice requires clear and
convincing evidence that the defendants published either with knowledge
that the defamatory statements were false or with reckless disregard for
whether the statements were true or false.”).
¶18 Yang contends the November 21 Article was excessively
published because the ACN Defendants posted it online in addition to
mailing free print copies to recipients in the United States and China. See
Green Acres Trust, 141 Ariz. at 616, 688 P.2d at 624 (“Once a defendant
demonstrates that a conditional privilege may apply, the plaintiff may then
prove an abuse of that privilege either by proving publication with ‘actual
malice’ or by demonstrating excessive publication.”). However, Yang cites
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no authority for his assertion that, on the facts of this case, excessive
publishing negates the fair reporting privilege. We therefore do not
address whether the ACN Defendants abused the fair reporting privilege
on these bases. See Cullum v. Cullum, 215 Ariz. 352, 355 n.5, ¶ 14, 160 P.3d
231, 234 n.5 (App. 2007) (appellate courts “will not consider argument
posited without authority.”); ARCAP 13(a)(7) (requiring appellant to
present significant arguments, set forth his or her position on the issues
raised, and include citations to relevant authorities, statutes, and portions
of the record.).
¶19 Because the fair reporting privilege applies to the November
21 Article, the court properly dismissed Yang’s defamation and other
claims stemming from the publication of that article. See, e.g., Lakeshore
Cmty. Hosp., Inc. v. Perry, 212 Mich. App. 396, 401, 538 N.W.2d 24, 27 (1995)
(“As with defamation actions, where the conduct allegedly causing the
business interference is a defendant’s utterance of negative statements
concerning a plaintiff, privileged speech is a defense.”); Restatement
(Second) of Torts § 652G (1977) (“The rules on conditional privileges to
publish defamatory matter . . . , and on the special privileges . . . , apply to
the publication of any matter that is an invasion of privacy.”).5
5 Regarding his claim for aiding and abetting, Yang merely alleged the
following:
ACN, Mr. Zhen, Mr. Ung, and Mrs. Ung substantially helped
and encouraged one another to publish false and derogatory
statements about Mr. Yang to members of the parties'
communities.
ACN, Mr. Zhen, Mr. Ung, and Mrs. Ung substantially helped
and encouraged one another to intentionally interfere with
Mr. Yang's business relations.
See Wells Fargo Bank v. Arizona Laborers, Teamsters & Cement Masons Local No.
395 Pension Trust Fund, 201 Ariz. 474, 485, ¶ 34, 38 P.3d 12, 23 (2002) (as an
element of an aiding and abetting claim, plaintiff must prove defendant
substantially assisted or encouraged the primary tortfeasor). Without
further factual allegations in the complaint, the above-referenced
allegations are conclusory and insufficient to survive a Rule 12(b)(6)
motion. See Coleman, 230 Ariz. at 356, ¶ 9, 284 P.3d at 867 (“In determining
if a complaint states a claim on which relief can be granted, courts must
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II. Summary Judgment: ACN’s November 28 Reply
¶20 We review de novo the grant of a motion for summary
judgment. Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 199,
¶ 15, 165 P.3d 173, 177 (App. 2007). Summary judgment is appropriate
when “there is no genuine issue as to any material fact and . . . the moving
party is entitled to a judgment as a matter of law.” Ariz. R. Civ. P. 56(c)(1).
We will affirm a grant of summary judgment if the trial court was correct
for any reason. City of Tempe v. Outdoor Sys., Inc., 201 Ariz. 106, 111, ¶ 14, 32
P.3d 31, 36 (App. 2001).
¶21 Here, Yang did not dispute the ACN Defendants’ statement
of facts supporting their summary judgment motion. Thus, he is
constrained to challenging the legal basis of the court’s grant of summary
judgment. But the various arguments Yang raises reflect his apparent
misapprehension regarding the content and purpose of the November 28
Reply. Our review of the November 28 Reply reveals it was published to
address the allegations in Yang’s Response regarding the ACN Defendants’
purported illegal publication of the November 21 Article.
¶22 In his Response to the November 21 Article, Yang did not
merely challenge the truthfulness of the defamatory comments contained
in the article, he also asserted the ACN Defendants’ publication of it was
unlawful. And by doing so, Yang inserted his views into the public
controversy regarding the First Amendment rights of the ACN Defendants
to publish the November 21 Article. Yang thus became a “limited purpose
public figure” for purposes of resolving his defamation claim against the
ACN Defendants. See Dombey v. Phoenix Newspapers, Inc., 150 Ariz. 476, 483,
724 P.2d 562, 569 (1986) (noting, “An individual may become a public figure
if he ‘thrust[s] himself or his views into public controversy to influence
others.’”) (quoting Hutchinson v. Proxmire, 443 U.S. 111, 135 (1979)).
¶23 As a public figure, Yang was required to produce evidence of
the ACN Defendants’ actual malice in publishing the November 28 Reply.
See Morris v. Warner, 160 Ariz. 55, 63, 770 P.2d 359, 367 (App. 1988). “A
statement is made with actual malice when the declarant makes the
statement with knowledge that it was false or with reckless disregard for
assume the truth of all well-pleaded factual allegations and indulge all
reasonable inferences from those facts, but mere conclusory statements are
insufficient.”).
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the truth.” Id. Actual malice can only be sufficiently proved with clear and
convincing evidence. Id.
¶24 Our review of the record reveals no evidence that the ACN
Defendants published the November 28 Reply either knowing it contained
false statements or with reckless disregard for its veracity. See Heuisler, 168
Ariz. at 282, 812 P.2d at 1100 (“Proof of actual malice requires clear and
convincing evidence that the defendants published either with knowledge
that the defamatory statements were false or with reckless disregard for
whether the statements were true or false.”). Accordingly, the ACN
Defendants were entitled to summary judgment on the defamation claim.
¶25 Because the November 28 Reply amounted to protected
speech, Yang’s tortious interference and false light claims also were
properly dismissed on summary judgment. See Western Technologies, Inc. v.
Sverdrup & Parcel, Inc., 154 Ariz. 1, 5-6, 739 P.2d 1318, 1322-23 (App. 1986)
(dismissing the plaintiff’s tortious interference claims because protected
speech cannot be “wrongful” as a matter of law); Godbehere v. Phoenix
Newspapers, Inc., 162 Ariz. 335, 342, 783 P.2d 781, 788 (1989) (“As in
defamation, a public official in a false light action must always show that
the defendant published with knowledge of the false innuendo or with
reckless disregard of the truth.”). Furthermore, Yang’s claim of aiding and
abetting Yang in connection with the November 28 Reply was properly
dismissed because, although Yang presented evidence that the ACN
Defendants had spoken with the Ungs, he presented no evidence that ACN
substantially helped or encouraged the Ungs to defame him. Absent
evidence of this element of aiding and abetting, the claim was properly
dismissed on summary judgment. See Wells Fargo Bank, 201 Ariz. at 485, ¶
34, 38 P.3d at 23 (elements of aiding and abetting.)
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CONCLUSION
¶26 The superior court’s orders granting the ACN Defendants’
motion to dismiss and motion for summary judgment are affirmed.
:jt
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