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Court of Appeal:
Candidate’s Wife Did Not Necessarily Become ‘Limited-Purpose Public Figure’—C.A.
By a MetNews Staff Writer
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ROSE BUI attorney |
An Orange County attorney was not a “limited-purpose public figure” by virtue of her husband being a candidate for the state Assembly when allegedly defamatory remarks concerning her were published, Div. Three of the Fourth District Court of Appeal has held.
It reinstated her stricken cause of action for defamation explaining that if she is properly regarded as having been a private individual, her inability to demonstrate actual malice is of no consequence.
Justice Thomas A. Delaney authored the opinion, filed Wednesday. It reverses a judgment of dismissal which followed Orange Superior Court Judge Richard Y. Lee’s granting of a special motion to strike the entire complaint pursuant to the anti-SLAPP statute, Code of Civil Procedure §425.16.
In a published portion, Delaney declared that plaintiff Rose Bui was a private figure in 2022 when the defendants implied in a YouTube broadcast that she and her family members are Communists. The fact that her husband, Ted Bui, was a candidate for public office does not mean that she had thrust herself into a public controversy, he said.
In an unpublished portion, the jurist concluded that the plaintiff showed that her cause of action for defamation has minimal merit, satisfying her burden under the second prong of §425.16 for defeating an anti-SLAPP motion. (There was no controversy as to the first prong, with the burden imposed on the defendants: that the lawsuit stems from protected conduct.)
Delaney also found in the unpublished section that Rose Bui did not demonstrate minimal merit in connection with her causes of action alleging emotional distress.
Required Showing
The justice disagreed with Lee’s conclusion that the woman was a limited-purpose public figure, which meant, under U.S. Supreme Court precedent, that she could not prevail absent a showing of actual malice (sometimes referred to as “constitutional malice”) which exist where publishers were aware of the falsity of their statements or proceeded with reckless disregard of the truth.
“[W]e find the evidence did not demonstrate plaintiff was something other than a private figure for defamation purposes,” Delaney wrote. “That is, the totality of the circumstances did not demonstrate she thrust herself into the vortex of a public issue in an attempt to influence the outcome or that she assumed special prominence in the resolution of a public debate.”
In their video, in a series of weekly commentaries posted on YouTube, defendants Nam Quan and Ngo Ky displayed what they purported to be a shot of Rose Bui toting a poster in support of her husband’s candidacy while they marched in a 2022 ethnic parade (the authenticity of the photo being belatedly disputed by Rose Bui in a post-anti-SLAPP ruling motion.)
Delaney said:
“The one-time carrying of a campaign poster with an unknown message by the wife of a political candidate at a cultural event, standing alone, does not amount to the type of voluntary injection in a public controversy at which the limited purpose public figure jurisprudence is aimed.”
(No shot of the candidate with his wife appeared on the campaign website.)
Defendants’ Contention
The defendants argued:
“In a political campaign, everything a spouse does becomes grist for the mill.”
They added that a “candidate does not run in isolation” and, in embarking on a campaign for a public office, “he or she brings the candidate’s family into the public eye.”
Delaney wrote:
“To the extent this is an urge for us to find any political candidate’s family members to be limited purpose public figures simply by reason of the candidate’s choice to run for public office, we decline to so hold. Defendants do not point us to any authority for such a broad sweeping rule. Moreover, doing so would effectively turn family members of a political candidate, including children, into public figures through no purposeful action of their own.”
Allegations on YouTube
In the video, that was streamed live, Ngo Ky asserted that “Ted Bui, a Fountain Valley city councilman and now running for state assemblyman is a guy connected with the Communists, his wife is a lawyer..., daughter of a Communist colonel” in Vietnam. A photo of a Vietnamese military officer was displayed, as was a depiction of Rose and Ted Bui at a parade on Orange County’s Bolsa Avenue on Tết, the first day of the Chinese lunar new year.
Ky added:
“[J]ust recently you see that during the parade he brought along a group of people wearing red outfits, red clothes and yellow hats, like the Communist flag, dancing and spinning on Bolsa Avenue, playing communist music and all. So, I warn you, I caution you about Ted Bui so you can be cautious about this guy, OK?”
Rose Bui said in a declaration in support of her anti-SLAPP motion:
“Communist associations or sympathies in the Vietnamese expatriate community will subject a person so charged to hatred, contempt, ridicule, and shame. My father was a civil engineer who retired in 2000. He never participated in the military. The man in the photo is not my father. I have never participated in, [was] involved with, or supported the Communist party. The red dress I wore at the TET parade was symbolic of the lunar new year. The music played was Vietnamese pop music for the young people to dance to. It was not Communist music.”
Ted Bui came in third in the primary in a six-way race, won in a runoff by Tri Ta.
The case is Bui v. Ky, 2024 S.O.S. 1585.
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