Elconin v. Bui CA4/1

Filed 2/23/22 Elconin v. Bui CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ANGIE ELCONIN, D079446
Plaintiff and Respondent,
v. (Super. Ct. No. 2015-1-CV-
285674)
THANH HA BUI,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Santa Clara County,
Carrie A. Zepeda, Judge. Affirmed.
Hoyt E. Hart II; Mazur & Mazur and Janice R. Mazur for Defendant
and Appellant.
Brownstein Hyatt Farber Schreck and Mitchell J. Langberg for
Plaintiff and Respondent.
Thanh Ha Bui appeals a money judgment against her for defaming
Angie Elconin. Bui claims the trial court erred by excluding from evidence a
document she claims was crucial to her defenses and by allowing Elconin’s
counsel to use slides that had not themselves been admitted in evidence to
highlight unusual typographical features of documents that had been
admitted and to argue to the jury that the same person authored the
documents. We reject these claims of error and affirm the judgment.
I.
BACKGROUND
Elconin filed a complaint for damages against Bui that included counts
for slander, libel, and intentional infliction of emotional distress based on
false and harassing statements Bui made orally to third parties or posted on
Facebook. Bui allegedly stated that Elconin was a fraud and a cheater who
stole jewelry, swindled investors and charities out of money, and owed a lot of
money to the IRS; that Elconin was buying or bribing witnesses; that Elconin
abused her son and was willing to kill him to get what she wants; and that
Elconin was a hooker and a prostitute. Bui filed an answer asserting a
general denial and fifteen affirmative defenses, including that the allegedly
defamatory statements were true or were nonactionable opinion.
As one of her exhibits for trial, Elconin listed an article entitled “Story
about the Millionaire Mother” that was published in a weekly magazine for
the Vietnamese community in San Jose (the Millionaire Mother article). The
article listed Thanh Minh as its author, but Elconin contended it was really
Bui. The article purported to tell a true story about an unnamed barbaric
and malicious mother who was so full of deceit and greed that she forced her
unnamed son to witness her wrongdoings, including selling stolen items out
of a garage, buying and selling houses by illegal means, cheating on taxes,
immorally ripping off people’s money, using a travel office in San Jose to
launder money, and lying about gambling trips to Las Vegas. The article
contained photographs of what appeared to be paragraphs of a declaration
2
and were described as “words of confession under oath in a court” and “honest
and plain” testimony by the son about his mother.
As one of her exhibits for trial, Bui listed the declaration from which
the paragraphs included in the Millionaire Mother article had been taken.
The declaration was submitted by Elconin’s son, Andrew Le, approximately
six years earlier in a marital dissolution action involving Elconin. In the
declaration, Le stated he did not want to get involved in the action, but
Elconin had made so many untruthful statements that he could no longer
remain silent. Le went on to state that: (1) Elconin bribed a warehouse
worker to report falsely that goods were damaged and to sell her the goods at
reduced cost, which Elconin then resold for cash out of her garage; (2) Elconin
used a Vietnamese travel agency to bring in cash from Vietnam; (3) Elconin
told Le she had twice loaned an individual cash to be laundered and was
never repaid the full amount; (4) Elconin told Le not to disclose trips to Las
Vegas on which she had won thousands of dollars; (5) Le witnessed several
residential real estate sales by Elconin in which she told the buyers they
would reduce their property taxes by paying part of the purchase price in
cash; and (6) Le heard one of Elconin’s real estate agents tell her the prices
on several sales appeared unreasonably low.
Elconin filed a motion in limine to exclude Le’s declaration on the
ground it was hearsay. (Evid. Code, § 1200.) In opposition, Bui argued the
declaration was not hearsay because she was not offering it to prove the truth
of the statements in the declaration but rather to prove the source of some
information included in the Millionaire Mother article and the lack of malice
in the publication of the article. Bui also argued the article would be
incomplete and confusing to the jury unless the jury could consider Le’s
entire declaration. The trial court granted the motion in part and ruled Le’s
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declaration was to be redacted to include only relevant statements. During
trial, the court revisited the admissibility of Le’s declaration in its entirety
and ruled it would neither be shown to the jury nor admitted in evidence
because it was more prejudicial than probative. The court ruled Bui could
testify she believed the information in the declaration was true because it
looked like a court document, but she could not quote the declaration for that
purpose. The court further ruled that if Bui chose to quote the declaration,
the court would instruct the jury on declarations and allow Elconin to
introduce discovery responses from Le about the declaration. There was no
court reporter present at either hearing; the rulings described above are
those contained in the court’s minutes. According to the parties’ exhibits
lists, no part of Le’s declaration was admitted at trial.
As part of closing argument, Elconin’s counsel presented a series of
slides to the jury that showed blowups of portions of the Millionaire Mother
article to highlight odd spacing around punctuation marks and to compare
them to similar oddities in documents written by Bui that had been admitted
at trial. The slides described the instances of odd spacing around
punctuation marks as “digital fingerprints,” and based on them the last slide
identified the “mystery author” of the article as Bui. There was no court
reporter present during closing arguments.
The jury returned a special verdict in which it found Bui told one or
more third parties that Elconin sold stolen goods, ripped off people’s money,
laundered money, took advantage of the public by seeking charitable
contributions with an ulterior purpose, should not be given money because
she cheats a lot of people, and cheated two charities. The jury found those
statements were not substantially true; Bui failed to use reasonable care to
determine their truth or falsity; the statements harmed Elconin; and Elconin
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proved by clear and convincing evidence that Bui acted with fraud,
oppression, or malice. The jury awarded Elconin no damages for actual
injury, $340,000 for assumed harm to her reputation, and $50,000 in punitive
damages. The court entered judgment on the jury’s verdicts and denied Bui’s
motion for a new trial.
II.
DISCUSSION
Bui raises two grounds for reversal of the judgment. She contends the
trial court’s exclusion of Le’s declaration was a violation of her due process
right to a fair trial and an abuse of discretion. Bui also contends Elconin’s
counsel’s use of slides in closing argument to compare documents introduced
at trial and then argue Bui authored the Millionaire Mother article was
improper expert analysis. As we explain below, neither ground has merit.
A.
Exclusion of Le’s Declaration
Bui primarily argues Le’s declaration was so crucial to her defenses to
defamation (truth, reasonable care, opinion, common interest privilege) that
its exclusion deprived her of property without due process of law and
constituted a structural error that is reversible per se. (U.S. Const., 14th
Amend., § 1; Cal. Const., art. I, § 7, subd. (a).) Bui alternatively argues the
exclusion of Le’s declaration was an abuse of discretion because the
declaration was substantially more probative than prejudicial. (Evid. Code,
§ 352.) We reject both contentions.
1.
Structural Error
We first consider Bui’s argument that the trial court’s rulings
regarding Le’s declaration are reversible without any showing of prejudice
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because, as she says, they “effectively gutted the defense” and denied her a
fair trial. In civil litigation, an error is reversible per se when it constitutes a
structural defect in the trial mechanism that cannot be evaluated for
prejudice. (F.P. v. Monier (2017) 3 Cal.5th 1099, 1108 (F.P.).) Such an error
typically occurs when the trial court deprives a party of its due process right
to a fair hearing. (Conservatorship of Maria B. (2013) 218 Cal.App.4th 514,
534.) One element of a fair trial is the right to offer admissible evidence on a
material issue. (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1357
(Elkins).) Thus, “when a trial court erroneously denies all evidence relating
to a claim, or essential expert testimony without which a claim cannot be
proven, the error is reversible per se because it deprives the party offering
the evidence of a fair hearing and of the opportunity to show actual
prejudice.” (Gordon v. Nissan Motor Co., Ltd. (2009) 170 Cal.App.4th 1103,
1114 (Gordon); see Kelly v. New West Federal Savings (1996) 49 Cal.App.4th
659, 668, 677 [erroneous ruling that “effectively excluded any presentation of
evidence on liability” was reversible per se].) “But ‘[c]ategorization of an
error as structural represents “the exception and not the rule.” ’ [Citation.]
‘[A] strong presumption’ exists against finding that an error falls within the
structural category, and ‘it will be the rare case’ where an error—even ‘a
constitutional violation’—‘will not be subject to harmless error analysis.’
[Citation.]” (F.P., at p. 1108.) This is not one of those rare cases, because the
trial court did not preclude Bui from presenting admissible evidence on
material issues.
Le’s declaration was not admissible at trial to support Bui’s truth
defense. Although “truth is a complete defense to a defamation claim”
(Hawran v. Hixson (2012) 209 Cal.App.4th 256, 293), Le’s declaration was not
admissible to prove the truth of the wrongdoing reported in the Millionaire
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Mother article because statements in a declaration filed in an unrelated case
are hearsay (Evid. Code, § 1200; North Beverly Park Homeowners Assn. v.
Bisno (2007) 147 Cal.App.4th 762, 778-779). Bui acknowledged Le’s
declaration was inadmissible to establish the truth of its contents when, in
opposing Elconin’s motion in limine to exclude the declaration, she asserted
she was not seeking to admit it for that purpose. She cannot now change her
theory and argue the opposite. (Swain v. LaserAway Medical Group, Inc.
(2020) 57 Cal.App.5th 59, 73; Beyer v. Tahoe Sands Resort (2005) 129
Cal.App.4th 1458, 1471.)
Nor was Le’s declaration admissible for the more limited truth defense
Bui urges on appeal, namely, that her assertions to a third party that a son
had given sworn testimony in court that his mother committed many bad
acts, as told in the Millionaire Mother article, and that Elconin was the
Millionaire Mother, were both true. The truth of those assertions would have
afforded no defense to Elconin’s defamation counts. “A false statement is not
less libelous because it is the repetition of rumor or gossip or of statements or
allegations that others have made concerning the matter.” (Ray v. Citizen-
News Co. (1936) 14 Cal.App.2d 6, 8-9.) The repetition of a slanderous charge
is actionable as a republication even though the repeater identifies the source
or states the charge is merely a rumor. (Ringler Associates Inc. v. Maryland
Casualty Co. (2000) 80 Cal.App.4th 1165, 1180 (Ringler).) “ ‘Proof that the
first person actually made the statement is therefore immaterial; to
constitute a defense the defamatory charge itself must be shown to be true.’ ”
(Arditto v. Putnam (1963) 214 Cal.App.2d 633, 639, fn. 2.) In words that fit
this case, our Supreme Court explained more than a century ago: “If A says
B is a thief, and C publishes the statement that A said B was a thief, in a
certain sense this would be the truth, but not in the sense that the law
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means. It would constitute no defense to C, for it would be but a repetition by
him of a slanderous charge. His defense must consist in showing that in fact
B is a thief.” (Gilman v. McClatchy (1896) 111 Cal. 606, 612; accord, Jackson
v. Paramount Pictures Corp. (1998) 68 Cal.App.4th 10, 26-27.) As explained
above, Le’s declaration was inadmissible to show Elconin was a thief.
Le’s declaration also was not admissible to support the common
interest privilege (Civ. Code, § 47, subd. (c)), which is an affirmative defense
to a defamation claim (Beroiz v. Wahl (2000) 84 Cal.App.4th 485, 492). As
Elconin points out and as Bui implicitly concedes by dropping the contention
in her reply brief, Bui forfeited the common interest privilege by not asserting
it in her answer. (Code Civ. Proc., § 430.80, subd. (a); Vitkievicz v. Valverde
(2012) 202 Cal.App.4th 1306, 1314; Hughes v. Nashua Mfg. Co. (1968) 257
Cal.App.2d 778, 783.) The privilege therefore was not a material issue in the
case on which Bui was entitled to offer evidence. (Evid. Code, §§ 210
[evidence is relevant if it has any tendency in reason to prove or disprove
disputed fact of consequence to determination of case], 350 [only relevant
evidence is admissible]; Elkins, supra, 41 Cal.4th at p. 1357.)
Bui could not use Le’s declaration to support her “defense” that her
identification of Elconin as the Millionaire Mother to a third party was
merely an opinion, not an assertion of fact.1 Statements of opinion rather
than fact cannot give rise to liability for defamation. (Campanelli v. Regents
1 The contention that an allegedly defamatory statement is an opinion
rather than an assertion of fact is technically not a defense to a defamation
claim. A defense states new matter that was not put in issue by the plaintiff.
(Code Civ. Proc., § 431.30, subd. (b)(2).) A defendant’s contention that a
statement is an opinion is really a denial of a material allegation by the
plaintiff, because “[i]t is an essential element of defamation that the
publication be of a false statement of fact rather than opinion.” (Ringler,
supra, 80 Cal.App.4th at p. 1181.)
8
of University of California (1996) 44 Cal.App.4th 572, 578.) We question
whether Bui’s identification of Elconin as the Millionaire Mother to a third
party who allegedly “pestered” Bui to reveal the identity was an opinion
rather than a statement of fact. Considering “the nature and full content of
the communication and . . . the knowledge and understanding of the audience
to whom the publication was directed” (Baker v. Los Angeles Herald
Examiner (1986) 42 Cal.3d 254, 261), we think it more probable that the third
party would have understood Bui’s identification as a factual assertion that
Elconin was the Millionaire Mother. Even if the identification were a mere
opinion, however, “there is no wholesale defamation exemption for anything
that might be labeled an opinion. If a statement of opinion implies a
knowledge of facts which may lead to a defamatory conclusion, the implied
facts must themselves be true.” (Ringler, supra, 80 Cal.App.4th at p. 1181.)
In the context of responding to an inquiry about the identity of the
Millionaire Mother, Bui’s assertion that it was Elconin implied knowledge of
facts reported in the Millionaire Mother article that were defamatory,
including Elconin’s commission of crimes. (Civ. Code, §§ 45 [defining libel],
46 [defining slander]; Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 278
[accusation of crime is defamatory].) But again, Le’s declaration was hearsay
and therefore inadmissible to prove the truth of the facts reported in the
article.
Finally, the trial court did not preclude Bui from using Le’s declaration
to support her “defense” that she used reasonable care in concluding and
telling a third party Elconin was the Millionaire Mother. “A private-figure
plaintiff must prove at least negligence to recover any damages” for
defamation. (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 747.)
This requires proof the defendant did not act “with reasonable care in
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checking on the truth or falsity of the information before publishing it.”
(Carney v. Santa Cruz Women Against Rape (1990) 221 Cal.App.3d 1009,
1016.)2 The trial court was willing to let Bui use Le’s declaration for that
purpose. During trial, the court ruled that although the entire declaration
would not be admitted, Bui could testify she believed the information in the
declaration was true because the declaration was filed in court; and if she
quoted the declaration, the court would instruct the jury on declarations and
the door would be open to evidence of what Le said about his declaration in
discovery. Bui, apparently for tactical reasons, chose not to use Le’s
declaration.
In sum, Bui has not overcome the “ ‘strong presumption’ ” that by
limiting the use of Le’s declaration, the trial court did not violate her due
process right to a fair trial and thereby commit a structural error that is
reversible per se. (F.P., supra, 3 Cal.5th at p. 1108; see Gordon, supra, 170
Cal.App.4th at pp. 1114-1115 [structural error occurs when court erroneously
excludes all evidence on claim or essential evidence without which claim
cannot be proven, not when court excludes some evidence relating to claim].)
To the contrary, the minimal record Bui has provided shows she cross-
examined Elconin’s witnesses at trial, called her own witnesses, admitted
several documents in evidence, and presented argument to the jury. Under
these circumstances, “there has been no ‘structural [defect] in the
constitution of the trial mechanism’ that might call for automatic reversal of
[the] judgment without consideration of actual prejudice.” (Soule v. General
Motors Corp. (1994) 8 Cal.4th 548, 579.)
2 Reasonable care, like opinion, is therefore not a defense to a defamation
claim, because a defendant’s assertion that she used reasonable care to
determine the truth or falsity of the alleged defamatory statement seeks to
negate an essential element of the plaintiff’s claim. (See fn. 1, ante.)
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2.
Abuse of Discretion
We next address Bui’s alternative contention that we must reverse the
judgment on the ground the trial court abused its discretion when it ruled
Le’s entire declaration would not be shown to the jury or admitted in
evidence because it was more prejudicial than probative. To prevail on this
claim, Bui must persuade us the ruling was erroneous and “resulted in a
miscarriage of justice.” (Cal. Const., art. VI, § 13; Evid. Code, § 354.) She has
not done so.
A court may exclude evidence when “its probative value is substantially
outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) The
trial court has “ ‘broad authority’ ” in balancing these factors, and its decision
will not be reversed unless it “ ‘was beyond the bounds of reason and resulted
in a manifest miscarriage of justice.’ ” (McCoy v. Pacific Maritime Assn.
(2013) 216 Cal.App.4th 283, 295-296 (McCoy).) On an appeal challenging a
ruling under Evidence Code section 352, the appellant has the burden to
establish prejudicial error. (Santillan v. Roman Catholic Bishop of Fresno
(2012) 202 Cal.App.4th 708, 727.)
Bui has not shown the trial court erred by refusing to admit Le’s entire
declaration. As discussed in connection with her claim of structural error,
Le’s declaration was not admissible for three of the defenses Bui asserts on
appeal (truth, common interest privilege, and opinion), and the court ruled
she could use it for the fourth (reasonable care), but she chose not to. The
11
court did not exceed the bounds of reason by so limiting the use of Le’s
declaration. (McCoy, supra, 216 Cal.App.4th at p. 296.)
Even if we assume the ruling was erroneous, Bui has not shown the
trial court’s ruling caused prejudice. A “ ‘miscarriage of justice’ should be
declared only when the court, ‘after an examination of the entire cause,
including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a
result more favorable to the appealing party would have been reached in the
absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836, italics
added; accord, Saxena v. Goffney (2008) 159 Cal.App.4th 316, 334-335.)
Because Bui has not provided us with a settled statement or a reporter’s
transcript of the trial (except the punitive damages phase) or most of the
exhibits introduced at trial, we cannot determine the effect that the
limitations on the use of Le’s declaration likely had on the trial outcome.
Perhaps the testimony and evidence presented at trial so strongly supported
Elconin’s defamation counts that the jury would have returned the same
verdicts even had Le’s declaration been admitted. Or perhaps, as Bui
asserts, the declaration would have bolstered her credibility and led the jury
to find that she had used reasonable care to determine the truth or falsity of
at least some of the defamatory statements. We can never know because the
record is inadequate for us to assess the probable effect of the admission of
Le’s declaration on the outcome. “By appealing, [Bui] assumed ‘the burden of
showing reversible error by an adequate record.’ ” (Tudor Ranches, Inc. v.
State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1433.) Her failure to
sustain that burden requires us to resolve the prejudice issue against her.
(Jameson v. Desta (2018) 5 Cal.5th 594, 609 (Jameson); Maria P. v. Riles
(1987) 43 Cal.3d 1281, 1295-1296.)
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B.
Use of Slides in Closing Argument
We finally turn to Bui’s contention the judgment must be reversed
because Elconin’s counsel improperly used slides during closing argument to
highlight similar unusual typographical features in the Millionaire Mother
article and documents authored by Bui that were admitted at trial. Bui
complains it was highly prejudicial for counsel to argue to the jury that the
features were “digital fingerprints” that proved she authored the article,
because the document comparison did not concern a matter of common
knowledge and required expert analysis that was not presented at trial. This
“ ‘digital fingerprint’ evidence was improper,” she says, “and the court erred
in admitting it.” We are not persuaded.
This contention is based in part on the factual premise that the slides
were a “demonstrative exhibit” and were admitted in evidence. The record
contradicts this premise. The court’s minutes do not identify any exhibit
being offered or admitted in evidence during closing argument. The list of
exhibits offered by Elconin does not include the slides. At the hearing on
Bui’s new trial motion, which was reported, Bui’s counsel told the court the
slides were not introduced into evidence, but the documents referenced in the
slides were. The court confirmed the referenced documents had been given to
the jury, but the slides themselves had not. The trial court thus did not
commit the evidentiary error Bui claims.
Bui has forfeited any challenge to the substance of Elconin’s counsel’s
closing argument, including his use of slides comparing documents to argue
that Bui wrote the Millionaire Mother article. To preserve a claim of
attorney misconduct in closing argument, a party must make a timely and
proper objection and move for a mistrial or seek a curative admonition.
13
(Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 794; Regalado v. Callaghan
(2016) 3 Cal.App.5th 582, 598-599; Neumann v. Bishop (1976) 59 Cal.App.3d
451, 468.) Because there was no court reporter present during closing
argument, there is no transcript showing an objection by Bui to the argument
of Elconin’s counsel, a motion for mistrial, or a request for an admonition to
the jury. Nor did Bui provide us with a settled statement that might have
addressed these matters. In her reply brief, Bui relies on a declaration her
counsel submitted in support of the motion for new trial in which counsel
stated the slides that Elconin’s counsel used during closing argument were
“admitted by the Court over Bui’s objections.” This is insufficient to avoid the
forfeiture. As discussed above, the record contradicts the claim that the
slides were admitted in evidence; and Bui’s counsel did not state in the
declaration the specific objections he made or that he moved for a mistrial or
requested a curative admonition. Moreover, we agree with Elconin that Bui’s
counsel’s “declaration is not a substitute for the reporter’s transcript,
or . . . for [a] settled statement on appeal, nor can it be relied upon to
establish what was said by anyone in the course of the trial.” (Ward v.
Litowsky (1970) 5 Cal.App.3d 437, 439-440.) Lastly, if Bui “wished us to
consider whether the alleged remarks [of Elconin’s counsel during closing
argument] prejudicially affected the jury’s verdict, she should have presented
us with a record which included them.” (Id. at p. 440.) Her failure to do so
requires us to resolve the claim of error against her. (Jameson, supra, 5
Cal.5th at p. 609; Calhoun v. Hildebrandt (1964) 230 Cal.App.2d 70, 72.)
14
III.
DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
O’ROURKE, Acting P. J.
AARON, J.
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