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Court of Appeal:
Revealing That Executive Has COVID-19 Is Not Actionable
Segal Says Use of Identity of Person Who Had Contracted Disease in News Story on Effects of Pandemic in
Ethnic Community Was in Connection With Issue of Public Interest, Giving Rise to Anti-SLAPP Motion
By a MetNews Staff Writer
An action by an executive of one newspaper against a rival publication and its president/editor for reporting that he had COVID-19 should have been dismissed pursuant to the anti-SLAPP statute given that the disclosure was relevant to a report on a matter of public interest, the Court of Appeal for this district held Friday.
It was the public’s interest in the issue—the effect of COVID-19 on the Korean-American community in Los Angeles—that mattered, Justice John L. Segal of Div. Seven explained in his unpublished opinion, and not whether the particular individual who was identified, Yunsoo Kim, was of prominence.
The opinion directs the Los Angeles Superior Court to grant the special motion to strike filed, pursuant to Code of Civil Procedure §426.16, by the Korea Times Los Angeles, Inc. and Ki Joon Kwon.
Wording of Article
On Dec. 15, 2020, the Korea Times said in a news report on COVID-19 (as translated into English):
“Even the circumstances, where confirmed cases continuously are occurring at the Korean workplaces like in Koreatown and downtown, are making the emergency situation of Corona proliferation danger to be felt real.
“It was revealed that the management office of 3700 Wilshire building, which is occupied by a lot of Korean professionals and companies in LA Koreatown on Wilshire Blvd., sent out a notice to the tenants that 3 confirmed cases for Corona have occurred within the building on the 12th last weekend and the 14th.
“Also, even in the Korean businesses, confirmed cases of the employees are occurring continuously. It was revealed that the newly appointed Advertisement Department Director, Yunsoo Kim, at Korea Daily, which had stopped publishing the newspaper for two days due to the occurrence of a confirmed case among its employees in April, was confirmed positive for Corona 19 last week. Accordingly, there has been a ripple effect that some of the advertisers, who had been in contact with him. were notified and went through diagnostic test for Corona.”
Causes of Action
Kim sued, alleging “Intrusion into Private Affairs,” “Public Disclosure of Private Facts” and “Unfair Business Practices In Violation Of California Business And Professions Code Sections 17200 et seq.” The cause of action under the Unfair Competition Law was against the Korea Times, only.
The plaintiff alleged that the defendants “intentionally disclosed Plaintiff’s mil name and job title at Korea Daily to harm Plaintiffs performance as the Head Director at Korea Daily’s advertising service and Korea Daily’s business,” insisting:
“There is no reason to disclose Plaintiffs full name and job title at Korea Daily in the December 15 Publication.”
Kim sought damages “exceeding $1,000,000.00,” averring that he “is particularly suffered from witnessing and experiencing the pain and suffering, such as being ostracized, bullied, and mistreated, that his spouse and children have received from their friends and/or coworkers due to the disclosure of his name with his COVID 19 medical condition in the December 15 Publication.”
Goorvitch’s Reasoning
In denying the special motion to strike on July 14, 2021, Los Angeles Superior Court Judge Stephen I. Goorvitch found that the reference to Kim by name did not meet the first prong of the anti-SLAPP statute, Code of Civil Procedure §425.16—speech in connection with a an issue of public interest because Kim is not a public figure. He said:
“The pandemic clearly is a matter of significant interest, but that is not sufficient to satisfy Defendants’ burden….Rather, Defendants must establish that Plaintiff is a public figure or otherwise so prominent that his diagnosis in particular would be of significant interest.
“Defendants fail to do so. In fact, Plaintiff is not a public figure, and Defendants fail to establish that Plaintiff otherwise is so prominent that they satisfy the standard for an Anti-SLAPP motion.”
Goorvitch continued:
“Defendants rely primarily on the declaration of Ki Jun Kwon, the President and Editor-in-Chief of the Korea Times, who states: ‘In deciding to include Plaintiffs identity in the Article, I applied journalistic standards applicable to The Korea Times, as Plaintiff is in an officer-level position at the Korea Daily.’…Essentially, Defendants argue that because the editor decided to run the story, it necessarily is a matter of public interest. That is not the standard. Whether someone is sufficiently of interest to the public is based upon objective information, and not the opinion of the editor whose story caused his newspaper to be sued.”
Segal’s Opinion
Segal saw it differently, declaring that the portion of the article referring to Kim comes under §425.16(e)(3( as a “writing made in…a public forum in connection with an issue of public interest.” He wrote:
“Notably, Kim concedes—and we agree—the December 15 article concerned an issue of public interest, namely, the spread of COVID-19 in the Los Angeles Korean American community….Kim argues, however, that to succeed on step one of the section 425.16 analysis, the Korea Times and Kwon must show the disclosure of his identity and diagnosis was, independently, an issue of public interest, as it might be if he were someone in “a position of public notoriety” (which he insists he is not)….
“Kim is wrong on the law. Section 425.16, subdivision (e)(3), applies not only to written public-forum statements that are, independently, about an issue of public interest, but also to written public-forum statements made ‘in connection with’ an issue of public interest.”
Identification Adds Credibility
The justice went on to say:
“[D]isclosing that Kim, specifically, had recently tested positive for the disease was not tangential to that public issue. As the December 15 article reported, Kim’s positive test for COVID-19 had a ‘ripple effect’ among advertisers who had been in contact with him, giving them reason to get tested for the virus. Disclosing Kim’s identity and diagnosis in the December 15 article may well have put other professional contacts on similar notice and, as Kim alleges, had a significant effect on his family’s social contacts. In addition, as Kwon stated in his declaration, it ‘is a widely-known and accepted principle in journalism that details, such as identities of individuals who are [the] subject of the news being reported, add credibility to an article.’ In sum, the statements disclosing Kim’s identity and diagnosis in the December 15 article were sufficiently tethered to the issue of public interest raised by the article and contributed to the public conversation of that issue.”
(In that declaration, Kwon added: “I believe that news regarding individuals in positions of influence within the Korean-American community are newsworthy for community-based news media, such as The Korea Times and the Korea Daily. In deciding to include Plaintiffs identity in the Article. I applied journalistic standards applicable to The Korea Times, as Plaintiff is in an officer-level position at the Korea Daily, whose appointment to the position itself was newsworthy enough to be printed by the Korea Daily. Indeed, the Korea Daily also prints identities of Korean Americans in positions of influence who have contracted COVID-19.”)
Second Prong
Segal also addressed the second prong of the statute: whether the lawsuit had a probability of succeeding on the merits, and he found it did not. He pointed out that Kim “submitted no evidence the Korea Times or Kwon engaged in any actionable form of intrusion,” that he “introduced no evidence his COVID-19 diagnosis was in fact a private fact,” and “does not attempt to explain how this conduct violates section 17200 or cite any legal authority suggesting it does.”
The case is Kim v. Korea Times Los Angeles, B314646.
Downtown Los Angeles attorney W. Dan Lee, who is also known as Won Kee Lee, represented Kim. Acting for the Korea Times and Kwon were Mark T. Hansen, Lisa J. Yang, and David D. Yang of the downtown Los Angeles firm of LimNexus LLP.
Writ Granted
Also on Friday, Goorvitch’s ruling in a real property case was found to be erroneous, prompting the granting of a writ petition. The judge granted a motion to expunge a lis pendens, holding that the plaintiff, Rozik Tadevosyan, cannot prevail in an action for specific performance because the sales contract, which the seller purported to rescind unilaterally, did not pinpoint the date when escrow would close, instead saying in would be “AFTER MARCH 1, 2014.”
In an unpublished opinion, Justice Carl H. Moor of Div. Five wrote:
“The essence of the trial court’s ruling was not that the Purchase Agreement was uncertain because it did not specify a time for performance, but that, under the facts of this case, the ‘reasonable time’ for performance has elapsed. However, the court erred when it conflated the expiration of the ‘reasonable time’ for performance with the expiration of the time to file suit.”
He said that “the expiration of a ‘reasonable time’ for performance marks the point at which the statute of limitations begins to run, and not when it ends,” but Goorvitch did not make a finding as to what a reasonable time would be.
Given the evidence that was presented, “Tadevosyan has made more than a sufficient showing of the probable validity of her claim for specific performance to support the lis pendens,” Moor declared.
The opinion directs that a new order be made denying the motion.
The case is Tadevosyan v. Superior Court, B319714.
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