Thursday, August 23, 2001
Anti-Communist Protest Leader Not Liable for Violence—C.A.
By ROBERT GREENE, Staff Writer
The leader of anti-communist demonstrations at a Garden Grove restaurant, organized amid outcry over the posting of a Ho Chi Minh picture at a video store in an adjacent Orange County city, could not be held liable for vandalism and acts of violence committed by protesters, the Fourth District Court of Appeal ruled yesterday.
The appeals court ordered that the trespass and economic interference suit brought by restaurant owner and Westminster City Councilman Tony Lam be stricken as a strategic lawsuit against public participation.
Damages can be awarded against protesters who accosted customers at the Vien Dong restaurant, slashed their tires, urinated on the building or committed other acts of violence, the court said, but only after Lam names them and returns to court and proves their acts. Lam failed to show that organizer Ky Ngo was responsible for those overzealous demonstrators, the court said.
A lower court order striking down Ky Ngo’s anti-SLAPP suit motion was reversed, but remained intact for demonstrators whom Lam so far has identified only as Does 1-1500.
The case is one of several court actions sparked by a display of a North Vietnamese flag and a portrait of communist leader Ho Chi Minh at Hi Tek, a video store in Orange County’s Little Saigon.
The area is the largest concentration of Vietnamese immigrants and their children in the United States and was born in the wake of the fall of the South Vietnamese government in 1975 and the unification of Vietnam as a communist nation ruled from the northern city of Hanoi. Saigon, the former Vietnamese capital after which the immigrant enclave was named, was renamed Ho Chi Minh city.
The video store immediately became the target of angry demonstrators, and leaders of the immigrant community demanded that elected officials in the region join in the protest. That’s when Lam became involved.
A member of the Westminster City Council as well as a restaurant owner, Lam asked for legal advice from the Westminster city attorney. He was given a strong recommendation that he stay away from the protests, he said, and he did. But community leaders saw his failure to join in as a betrayal, and they began to target his restaurant, which had no connection to the video store.
Demonstrations began on March 12, 1999. The restaurant’s landlord, sympathetic to the protesters, allowed them to gather in the parking lot, where through bullhorns they demanded that Lam resign from the Westminster City Council. (The opinion, by Presiding Justice David G. Sills of Div. Three, stated erroneously that Lam was a member of the city council in Garden Grove, where the restaurant is located. It also erroneously called the plaintiff “Tom Lam” in several places, while naming him correctly in others.)
Lam alleged in applications for a restraining order and a preliminary injunction that protesters physically accosted would-be restaurant patrons, called them names, pounded on their cars, slashed their tires, interrupted their meals with chants on bullhorns, blocked their cars when they attempted to leave, videotaped their license plates, and took other, more direct, actions against the restaurant and Lam, including displaying effigies of him “in lewd sexual positions” with Ho Chi Minh.
The restaurant allegedly suffered a 40 percent decline in revenues, and had to hire security guards to allow customers to come in safely from the parking lot.
Lam, arguing that he had acted on the advice of the city attorney, sued the city of Westminster for $100,000 in attorney fees to pay for his costs in filing for the restraining order and injunction. That matter was not before the Fourth District.
What was before the court was Lam’s first amended complaint against the protesters, filed just before he won his bid for a preliminary injunction.
In the amendment, he alleged against Ngo intentional infliction of emotional distress, intentional interference with economic advantage, trespass and nuisance. Ngo filed a motion to strike pursuant to Code of Civil Procedure Sec. 425.16—the anti-SLAPP statute.
Orange Superior Court Judge Robert D. Monarch rejected the motion, explaining that Ngo had already lost the preliminary injunction battle and was presenting nothing new. He then found that the purpose of Ngo’s motion, given the grant of the injunction, was to harass and delay, and he sanctioned him and his lawyer $8,000.
In one of many quirks and ironies reported in the opinion, Ngo successfully overcame the allegations against him in the amended complaint but failed to appeal as to the $8,000 in sanctions. The sanctions consequently remain in effect, even though the Fourth District virtually overturned the finding that the motion was just a delay tactic.
Sills noted the further irony that the sanction order was based in part on the fact that Ngo “cited and relied upon an unpublished federal district court opinion in violation of California Rule of Court 977 and decisional authority.” The opinion, dealing with the running of the time period to file after either an original or an amended complaint, was Globetrotter Software, Inc. v. Elan Computer Group, 63 F.Supp.2d 1127, a 1999 case from the Northern District of California.
But by the time Monarch had issued his sanction order, Rule 977 had been amended to specifically allow citation to unpublished opinions from federal courts or cases outside of California.
“So the basis of the court’s order sanctioning Ngo was based on out-of-date law,” Sills said in a footnote.
The justice further noted that Globetrotter was eventually published after all.
Much of the opinion focused on SLAPP and anti-SLAPP procedure. The court held that the law providing the defendant 60 days following the allegedly improper complaint to file under the anti-SLAPP laws applies to amended as well as original complaints. The court also held that the moving party gets an extra five days if the filings are by mail.
The case is Lam v. Ngo, G026329.
Copyright 2001, Metropolitan News Company