Opinion
B314646
12-09-2022
YUNSOO KIM, Plaintiff and Respondent, v. THE KOREA TIMES LOS ANGELES, INC. et al., Defendants and Appellants.
Lee Law Offices and W. Dan Lee aka Won Kee Lee for Plaintiff and Respondent. LimNexus, Mark T. Hansen, Lisa J. Yang, and David D. Yang for Defendants and Appellants.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 21STCV01458 Stephen I. Goorvitch, Judge. Reversed with directions.
Lee Law Offices and W. Dan Lee aka Won Kee Lee for Plaintiff and Respondent.
LimNexus, Mark T. Hansen, Lisa J. Yang, and David D. Yang for Defendants and Appellants.
SEGAL, J.
INTRODUCTION
After the Korea Times Los Angeles, Inc. published a newspaper article that identified Yunsoo Kim as having tested positive for COVID-19, Kim sued the Korea Times and its newspaper's editor-in-chief, Ki Jun Kwon, for public disclosure of private information and related causes of action. The Korea Times and Kwon appeal from the trial court's order denying their special motion to strike Kim's complaint under Code of Civil Procedure section 425.16 (section 425.16). The court made that ruling after determining the Korea Times and Kwon failed to make the requisite threshold showing that Kim's causes of action arose from protected activity.
We agree with the Korea Times and Kwon the trial court erred in ruling Kim's causes of action did not arise from protected activity. We also agree Kim did not demonstrate his claims have minimal merit. Therefore, we reverse the trial court's order denying the special motion to strike and direct the court to enter a new order granting the motion.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Korea Times Publishes an Article About COVID-19 That States Kim Tested Positive for the Virus
The Korea Times publishes The Korea Times, a daily, Korean-language newspaper that circulates in Los Angeles. Local editions reach homes across Southern California and are available online at the newspaper's website. As editor-in-chief of The Korea Times, Kwon has authority to make final decisions about the content of the newspaper's articles.
On March 4, 2020 the State of California and the City of Los Angeles declared a state of emergency in response to the appearance and widespread transmission of COVID-19. A week later the World Health Organization designated COVID-19 a pandemic. Throughout 2020 The Korea Times published hundreds of articles on the COVID-19 pandemic. One of these ran on December 15, 2020 under the title "Even among Acquaintances, Confirmed Cases here and there" (the December 15 article).
This title and our description of the article's content refer to the English-language translation that accompanied the special motion to strike.
The December 15 article reported on the growing number of confirmed COVID-19 cases in the Los Angeles Korean American community, the effects of COVID-19 on businesses in that community, the dangers of not complying with safety measures to prevent the disease's spread, and the importance of understanding the risks of transmission. In addressing these topics, the article identified specific instances of confirmed COVID-19 cases. For example, it identified the "3700 Wilshire building, which is occupied by a lot of Korean professionals and companies in LA Koreatown," where three cases had been confirmed. Similarly, it reported that "even at SBS broadcasting company, one reporter was confirmed positive, so that the staff members and the family urgently all went through a diagnostic test for [COVID-19], and that due to this the evening news was not aired on the 11th."
"Spanish Broadcasting System, Inc. ('SBS'), is a Spanish- language radio company which owns fourteen stations in seven U.S. markets" (Spanish Broadcasting System, Inc. v. Clear Channel Communications, Inc. (S.D. Fla. 2003) 242 F.Supp.2d 1350, 1353), including two in the Los Angeles area (Spanish Broadcasting System, Inc. v. Grupo Radio Centro LA, LLC (C.D.Cal., Sept. 22, 2016, No. CV-1600980-BRO GJSx) [2016 WL 9049646, p. 1]).
In the same context, the article further stated: "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 [COVID-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 a diagnostic test for [COVID-19]." This paragraph gives rise to this lawsuit.
B. Kim Files This Action Against the Korea Times and Kwon, Who File a Special Motion To Strike, Which the Trial Court Denies
In January 2021 Kim filed this action against the Korea Times and Kwon, asserting causes of action against both defendants for (1) intrusion into private affairs and (2) public disclosure of private facts and against the Korea Times for (3) unfair business practices in violation of Business and Professions Code section 17200 et seq. Kim alleged that, as a result of the December 15 article's disclosure of his identity and medical condition, he and his family "were shunned from their social contacts." He also alleged that his wife contacted In Hee Seok, the reporter who wrote the December 15 article, and that Seok stated it was Kwon, not Seok, who was responsible for disclosing Kim's full name in the article. Kim alleged Kwon disclosed his name and job title at Korea Daily because Korea Daily was a competitor of The Korea Times and Kwon wanted to harm Kim's performance as the head director of Korea Daily's advertising service and, more generally, Korea Daily's business.
The Korea Times and Kwon filed a special motion to strike under section 425.16, contending that all three of Kim's causes of action arose from the defendants' exercise of their constitutional rights of petition and free speech under the United States and California Constitutions in connection with a public issue and that Kim could not establish a probability of prevailing on his claims. More specifically, regarding the first contention, the Korea Times and Kwon argued Kim's causes of action arose from a written statement made in a public forum in connection with an issue of public interest, within the meaning of section 425.16, subdivision (e)(3), as well as from conduct in furtherance of the exercise of the constitutional right of free speech in connection with a public issue or an issue of public interest, within the meaning of section 425.16, subdivision (e)(4). The defendants supported their motion with a declaration by Kwon and a request for judicial notice of certain documents and facts relating to the COVID-19 pandemic.
Kim filed an opposition to the motion, supported by a declaration from his wife. In her declaration Kim's wife stated that she read the December 15 article the day it was published; that she subsequently "received numerous phone calls and instant messages regarding [her] husband's medical condition"; that she contacted the reporter who had written the December 15 article, Seok, who denied disclosing Kim's identity in the article, told her that Kwon was responsible for doing so, and "expressed her sincere apology . . . for causing such pain and suffering"; and that Seok sent her an email (attached as an exhibit to the declaration) reiterating her distress over and apology for what had occurred.
The trial court denied the motion, ruling the Korea Times and Kwon failed to show Kim's causes of action arose from acts in furtherance of their constitutional rights of petition or free speech in connection with a public issue. Although the court agreed with the defendants the December 15 article related to "matters of public concern," namely, the spread of COVID-19 in the Los Angeles Korean American community, the court ruled the defendants "must establish that [Kim] is a public figure or otherwise so prominent that his diagnosis in particular would be of significant interest," which they failed to do. The Korea Times and Kwon timely appealed.
DISCUSSION
A. Applicable Law and Standard of Review
Section 425.16, subdivision (b)(1), provides that a "cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." Section 425.16, subdivision (e), provides that an "'act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue' includes: . . . (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." The Legislature has instructed that the statute "'be construed broadly.'" (Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 619.)
Courts evaluate special motions to strike under section 425.16 "through a two-step process. Initially, the moving defendant bears the burden of establishing that the challenged allegations or claims 'aris[e] from' protected activity in which the defendant has engaged. [Citations.] If the defendant carries its burden, the plaintiff must then demonstrate its claims have at least 'minimal merit.'" (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1061 (Park); accord, Serova v. Sony Music Entertainment (2022) 13 Cal.5th 859, 871.)
We review de novo a trial court's order granting or denying a special motion to strike under section 425.16. (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788.) "We exercise independent judgment in determining whether, based on our own review of the record, the challenged claims arise from protected activity. [Citations.] In addition to the pleadings, we may consider affidavits concerning the facts upon which liability is based." (Park, supra, 2 Cal.5th at p. 1067.)
B. The Trial Court Erred in Denying the Special Motion To Strike
1. Kim's Causes of Action Arise from the Korea Times' and Kwon's Protected Activity
The Korea Times and Kwon argue Kim's causes of action arise from their disclosure of Kim's personal information-his name, job title, and COVID-19 diagnosis-in the December 15 article, which they argue was protected activity under section 425.16, subdivisions (e)(3) and (e)(4). We agree Kim's claims arise from the Korea Times' and Kwon's protected activity under section 425.16, subdivision (e)(3).
Kim's three causes of action arise from the disclosure by the Korea Times and Kwon of Kim's personal information in the December 15 article. (See Park, supra, 2 Cal.5th at p. 1063 [a "claim arises from protected activity when that activity underlies or forms the basis for the claim," and "the focus is on determining what 'the defendant's activity [is] that gives rise to his or her asserted liability'"].) Kim readily acknowledges as much regarding the Korea Times, but argues his "claims against Kwon do not arise from Kwon's acts, namely, deciding to include [Kim's] personal and medical information in the December 15 Publication." Though unclear, Kim may be suggesting there is a meaningful distinction between the activity of disclosing his personal information and the activity of deciding to disclose his personal information. If so, he provides no legal authority to support that proposition. (See Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277 ["We may and do 'disregard conclusory arguments that are not supported by pertinent legal authority or fail to disclose the reasoning by which the appellant reached the conclusions he wants us to adopt.'"].) In any event, his argument does not survive the briefest glimpse at the complaint, where all causes of action assert liability against "Defendants"-the Korea Times and Kwon, collectively-based on allegations that "Defendants" disclosed his personal information.
Kim characterizes this argument as one that Kwon "has no standing" under section 425.16.
The Korea Times and Kwon are also correct that disclosing Kim's personal information in the December 15 article was protected activity under section 425.16, subdivision (e)(3). There is no dispute the disclosure was a written statement made in a public forum. (See Sonoma Media Investments, LLC v. Superior Court (2019) 34 Cal.App.5th 24, 34 [a newspaper that "'can be purchased and read by members of the public'" is a "public forum" within the meaning of section 425.16, subdivision (e)(3)].) The dispute is whether the disclosure was made "in connection with an issue of public interest." (§ 425.16, subd. (e)(3).) It was.
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. (See Woodhill Ventures, LLC v. Yang (2021) 68 Cal.App.5th 624, 631 (Woodhill) ["statements or conduct that qualify as 'public interest'" include those "that could directly affect a large number of persons beyond the direct participants" and those "involving a topic of widespread interest"]; cf. Rand Resources, LLC v. City of Carson, supra, 6 Cal.5th at p. 621 ["'a matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest'"].) 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). (See Woodhill, at p. 631 [a statement may be of public interest if it concerns "a person or entity in the public eye"].)
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. As we observed in Hunter v. CBS Broadcasting Inc. (2013) 221 Cal.App.4th 1510, in holding the defendant broadcasting company's decision not to hire the plaintiff as a news anchor was protected activity under section 425.16, subdivision (e)(4): "The statute . . . states that conduct must be in furtherance of the exercise of free speech rights 'in connection' with a public issue or issue of public interest. Thus, the proper inquiry is not whether [the defendant's] selection of a weather anchor was itself a matter of public interest; the question is whether such conduct was 'in connection with' a matter of public interest." (Hunter, at p. 1527; see Park, supra, 2 Cal.5th at p. 1072 [discussing Hunter]; Bernstein v. LaBeouf (2019) 43 Cal.App.5th 15, 23, fn. 5 [treating "the phrase 'in connection with'" as having the same meaning in section 425.16, subdivisions (e)(3) and (e)(4)]; see also Tamkin v. CBS Broadcasting, Inc. (2011) 193 Cal.App.4th 133, 144 [under section 425.16, subdivision (e)(4), use of plaintiffs' names in the creative process underlying a television episode was in connection with a public interest in the writing, casting, and broadcasting of the episode, and there was "no requirement in the . . . statute that the plaintiff's persona be a matter of public interest"].)
True, "there must be 'some degree of closeness between the challenged statements and the asserted public interest,'" and a "tangential relationship is not enough." (Woodhill, supra, 68 Cal.App.5th at p. 632; see FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 140 [defendant's statements were "too tenuously tethered to the issues of public interest they implicate, and too remotely connected to the public conversation about those issues, to merit protection" under section 425.16, subdivision (e)(4)].) Nor is it enough to draw a connection between the challenged statement and some "'broad and amorphous public interest.'" (World Financial Group, Inc. v. HBW Ins. &Financial Services, Inc. (2009) 172 Cal.App.4th 1561, 1570; see Woodhill, at p. 632 ["Agile thinkers always can create some kind of link between a statement and an issue of public concern. All you need is a fondness for abstraction and a knowledge of popular culture."]; Dual Diagnosis Treatment Center, Inc. v. Buschel (2016) 6 Cal.App.5th 1098, 1106 ["Almost any statement, no matter how specific, can be construed to relate to some broader topic."].)
But the issue of public interest addressed by the December 15 article-the spread of a life-threatening disease in the Los Angeles Korean American community-was hardly abstract or amorphous. And disclosing 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.
Because Kim provides no legal authority to support it, we disregard his suggestion that, to qualify as protected activity under section 425.16, the disclosure of his personal information must have been "necessary" to the December 15 article's treatment of an issue of public interest.
2. Kim Did Not Demonstrate His Claims Have Minimal Merit
The second step of the section 425.16 analysis is "'a "summary-judgment-like procedure."'" (Monster Energy Co. v. Schechter, supra, 7 Cal.5th at p. 788.) Our "'inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment.'" (Ibid.) We accept "the plaintiff's evidence as true, and evaluate[ ] the defendant's showing only to determine if it defeats the plaintiff's claim as a matter of law." (Ibid.) A "plaintiff seeking to demonstrate the merit of [a] claim 'may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.'" (Ibid.) Kim did not make the necessary prima facie showing for any of his causes of action.
a. Intrusion into Private Affairs
To prevail on a cause of action for intrusion into private affairs, "a plaintiff must establish that the defendant intentionally intruded into a private place, conversation, or matter in a manner highly offensive to a reasonable person." (Taus v. Loftus (2007) 40 Cal.4th 683, 730 (Taus).) In addition, "'[t]o prove actionable intrusion, the plaintiff must show the defendant penetrated some zone of physical or sensory privacy surrounding, or obtained unwanted access to data about, the plaintiff. The tort is proven only if the plaintiff had an objectively reasonable expectation of seclusion or solitude in the place, conversation, or data source.'" (Ibid.)
Kim's evidence was not sufficient to sustain a favorable judgment on this cause of action. In particular, he submitted no evidence the Korea Times or Kwon engaged in any actionable form of intrusion. In his declaration in support of the motion, Kwon stated the Korea Times received its information about Kim "unsolicited, from a third party who had knowledge of [Kim's] confirmed COVID-19 diagnosis and voluntarily disclosed that information to The Korea Times." Nothing in Kim's wife's declaration-the only evidence Kim submitted in opposition to the motion-contradicted Kwon's statements in his declaration on this point or indicated Kim had a reasonable expectation the Korea Times' source would not disclose his personal information. (Cf. Taus, supra, 40 Cal.4th at pp. 731-734 [discussing a possible actionable intrusion where the defendant, by engaging in improper or unforeseen conduct, obtains private information from the plaintiff's close relatives or friends].)
b. Public Disclosure of Private Facts
To prevail on a cause of action for public disclosure of private facts, a plaintiff must prove the "'"(1) public disclosure, (2) of a private fact, (3) which would be offensive and objectionable to the reasonable person, and (4) which is not of legitimate public concern."'" (Taus, supra, 40 Cal.4th at p. 717.) Concerning the fourth element, the Supreme Court has explained that "'lack of newsworthiness is an element of the "private facts" tort, making newsworthiness a complete bar to common law liability."'" (Ibid.; accord, Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 215; see Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1256 ["the dissemination of truthful, newsworthy material is not actionable as a publication of private facts"]; Diaz v. Oakland Tribune, Inc. (1983) 139 Cal.App.3d 118, 128-129 ["the plaintiff has the burden of proving that the publication was not privileged, i.e., that it was not newsworthy"].)
Newsworthiness "is largely a question of fact" that "depends upon contemporary community mores and standards of decency." (Diaz v. Oakland Tribune, Inc., supra, 139 Cal.App.3d at p. 133; see Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4th 856, 874 ["'"In determining what is a matter of legitimate public interest, account must be taken of the customs and conventions of the community; and in the last analysis what is proper becomes a matter of the community mores."'"].) "In analyzing the element of newsworthiness, appellate decisions 'balance[ ] the public's right to know against the plaintiff's privacy interest by drawing a protective line at the point the material revealed ceases to have any substantial connection to the subject matter of the newsworthy report.'" (Jackson v. Mayweather, supra, 10 Cal.App.5th at p. 1257.) Courts "'have generally protected the privacy of otherwise private individuals involved in events of public interest "by requiring that a logical nexus exist between the complaining individual and the matter of . . . public interest."'" (Taus, supra, 40 Cal.4th at p. 718; see ibid. ["'recent decisions have generally tested newsworthiness with regard to such individuals by assessing the logical relationship or nexus, or the lack thereof, between the events or activities that brought the person into the public eye and the particular facts disclosed'"].)
The Supreme Court has also emphasized that an "'"analysis measuring newsworthiness of facts about an otherwise private person involuntarily involved in an event of public interest by their relevance to a newsworthy subject matter incorporates considerable deference to reporters and editors.... In general, it is not for a court or jury to say how a particular story is best covered.' [Citation.] 'By confining our interference to extreme cases, the courts "avoid[ ] unduly limiting . . . the exercise of effective editorial judgment."'" (Taus, supra, 40 Cal.4th at p. 719.)
Kim's evidence was insufficient to support a favorable judgment on this cause of action as well. He introduced no evidence his COVID-19 diagnosis was in fact a private fact. (See Moreno v. Hanford Sentinel, Inc. (2009) 172 Cal.App.4th 1125, 1130 ["A matter that is already public or that has previously become part of the public domain is not private."].) Nor does he cite any evidence to support his assertion that disclosing his identity and diagnosis was not newsworthy. The Korea Times and Kwon, on the other hand, submitted evidence that the New York Times, the Los Angeles Times, and "other Korean language media publications," including the Korea Daily, "publish identities of individuals known to have been diagnosed with COVID-19" and that, in deciding to include Kim's identity in the December 15 article, Kwon "applied journalistic standards applicable to The Korea Times, as [Kim] 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"-facts supporting the Korean Times and Kwon's position that disclosing Kim's identity was newsworthy.
c. Unfair Business Practices
Kim's final cause of action is for unfair business practices in violation of Business and Professions Code section 17200, which "prohibits practices that are 'unfair,' 'unlawful' or 'fraudulent.'" (Countrywide Financial Corp. v. Bundy (2010) 187 Cal.App.4th 234, 256.) Kim cites conduct by the Korea Times that he asserts violates the statute, including, for example, "knowingly and intentionally publishing [Kim's] private medical information with his personal information, even when the original article written by the reporter did not contain such information." But he does not attempt to explain how this conduct violates section 17200 or cite any legal authority suggesting it does. Therefore, we disregard his argument. (See Hernandez v. First Student, Inc., supra, 37 Cal.App.5th at p. 277.)
DISPOSITION
The trial court's order denying the special motion to strike under section 425.16 is reversed, and the court is directed to enter a new order granting the motion. The Korea Times and Kwon are to recover their costs on appeal.
We concur: PERLUSS, P. J. HOWARD, J. [*]
[*] Judge of the Marin County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.