Opinion
G062016
01-16-2024
LE XUAN KHOA, Plaintiff and Respondent, v. NGUYEN DINH THANG et al., Defendants and Appellants.
Voss, Silverman & Braybrooke, David C. Voss; Ropers Majeski, Stephen J. Erigero and Pascale Gagnon for Defendants and Appellants. Hoyt E. Hart II for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, No. 30-2021-01201012 Stephanie George, Judge.
Voss, Silverman & Braybrooke, David C. Voss; Ropers Majeski, Stephen J. Erigero and Pascale Gagnon for Defendants and Appellants.
Hoyt E. Hart II for Plaintiff and Respondent.
OPINION
MOTOIKE, J.
Plaintiff Le Xuan Khoa and defendant Nguyen Dinh Thang have advocated on behalf of Vietnamese refugees for years. In 2020, Khoa and Thang published articles, each claiming credit for developing the framework for the Resettlement Opportunity for Vietnamese Returnees (ROVR), an initiative between the United States and Vietnam to resettle certain Vietnamese refugees. Khoa believed a few statements in Thang's article were defamatory, and he sued Thang and his nonprofit corporation, defendant Boat People S.O.S., Inc. (BPSOS; collectively, Thang defendants).
The trial court granted in part and denied in part Thang defendants' special motion to strike under the anti-SLAPP statute. (Code Civ. Proc., § 425.16; all undesignated statutory references are to this code.) When considering this anti-SLAPP motion, the court also admitted a declaration of Khoa. On appeal, Thang defendants challenge the court's denial of the anti-SLAPP motion as to Khoa's defamation claim and its evidentiary ruling as to Khoa's declaration.
The Legislature enacted the anti-SLAPP statute "to combat 'a disturbing increase' in strategic lawsuits against public participation (SLAPPs): 'lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.'" (Geiser v. Kuhns (2022) 13 Cal.5th 1238, 1242, quoting § 425.16, subd. (a).)
We affirm. For purposes of our analysis, we assume, without deciding, the statement upon which the defamation claim is based arose out of protected activity under section 425.16, subdivision (e). We conclude the trial court properly denied in part the anti-SLAPP motion because Khoa carried his burden of showing a probability of prevailing on his defamation claim. We also find the trial court did not abuse its discretion by considering Khoa's declaration in ruling on the anti-SLAPP motion.
FACTS AND PROCEDURAL BACKGROUND
I.
THE PARTIES
Khoa served as the president of the Southeast Asia Resource Action Center (SEARAC), a nonprofit that advocates on behalf of Vietnamese, Cambodian, and Laotian Americans, until 1996. Thang was the chief executive officer and president of BPSOS. BPSOS is a nonprofit corporation that, among other things, assists refugees fleeing Vietnam and Vietnamese refugees in the United States.
In the 1990's, the parties championed policies to support Vietnamese refugees in asylum camps across Southeast Asia. Decades later, in 2020, Khoa published two articles, asserting he developed the framework for ROVR. In response, on May 25, 2020, Thang published an article, maintaining he and BPSOS designed the basis for ROVR, not Khoa.
II.
THE COMPLAINT
In May 2021, Khoa filed a complaint against Thang defendants, alleging two causes of action: defamation and negligent infliction of emotional distress. Of relevance here, Khoa alleged Thang published the following false statement in an article on a BPSOS website on May 25, 2020: Khoa "'declared falsely that he was a Ph.D. in his grant application to the state department. That is a criminal offense.'" Khoa asserted Thang's statement defamed him and constituted libel per se.
III.
THE ANTI-SLAPP MOTION, THE OPPOSITION, AND THE PARTIES' SUPPORTING EVIDENCE
Thang defendants filed an anti-SLAPP motion, seeking to strike the entire complaint. They challenged, among other things, the statement in the complaint recited above as protected activity under the anti-SLAPP statute. In support of their motion, Thang defendants submitted a declaration of Thang and eight exhibits, including Khoa's two articles and Thang's May 2020 article wherein he made the challenged statement. All three articles were published online in Vietnamese, but Thang defendants provided English translations. They also provided two letters by Congressmember Robert K. Dornan.
Khoa opposed the motion, contending that the challenged statement was not protected activity and that Khoa showed a probability of prevailing on the merits on his defamation claim. In support, he provided two declarations, including his own. Thang defendants replied and objected to Khoa's evidence, including Khoa's declaration.
We summarize the publications below. We discuss the remaining relevant evidence in our discussion section.
A. Khoa's Publications
In April 2020, Khoa published an article in various Vietnamese-language media outlets, such as Voice of America, describing and reflecting on the history of Vietnamese refugees since 1975. Khoa provided four examples of "effective refugee involvement in addressing refugee issues," including his nonprofit's "Gray Area" initiative in the 1990's. According to Khoa, the Gray Area initiative sought to reexamine the refugee cases of Vietnamese migrants in first asylum camps in Southeast Asia who qualified for refugee status but, under then existing procedures, were unjustly "screened out" and required to repatriate. Khoa asserted the "Gray Area" initiative later became the "Track II" project and then ROVR, a resettlement program Vietnam and the United States agreed to establish in 1996. ROVR gave certain Vietnamese migrants who still remained in first asylum camps or who had recently returned to Vietnam a final opportunity at a United States resettlement interview to evaluate their refugee status.
In May 2020, Khoa published another article, this time on Saigon Broadcasting Television Network's website, in response to readers' questions concerning Thang's involvement in establishing ROVR. Some readers had seen BPSOS's December 2019 article, touting BPSOS's efforts in creating ROVR. In his article, Khoa disputed BPSOS's claim, stating, "I should not be concerned about shady tricks aiming to steal credit to enhance one's prestige and serve one's private interest." He continued, "I was the person who first advocated [for ROVR] and participated in every step of the initiation stage and advocacy stage over [five] years .... Dr. Nguyen Dinh Thang and BPSOS only joined the ROVR advocacy effort in 1998 and only advocated for late applicants." Thang even "opposed the Gray Area" initiative, the basis of ROVR. Yet Thang "still claimed credit for ROVR and the resettlement of over 18,000" refugees.
B. Thang's Publication
In response to Khoa's two articles, Thang published an article on Mach Song Media's website on May 25, 2020. Thang wrote Khoa's articles included "not only misleading but counterfactual details about [Khoa's] role in" the creation of ROVR. Thang described collaborating with a congressmember in passing section 1104 of House Bill No. 1561-a provision that sought to prohibit the United States Department of State (State Department) from financing forced repatriations of Vietnamese migrants and that provided funds to resettle migrants who satisfied certain criteria-and Khoa's efforts in opposing it.
Under the heading, "Neutralizing the Le Xuan Khoa trump card," Thang wrote: "In the Consortium [of organizations against section 1104 of House Bill Number 1561], Mr. Khoa was the most dangerous member because he is Vietnamese. The Department of State in the Clinton Administration used this card enthusiastically against Congress, which was backing us at the time.
"Immediately after the two [United States House of Representatives] hearings, Congressman [Dornan] sent an official letter requesting the Inspector General of the Department of State to investigate Mr. Khoa and SEARAC on a fraudulent background statement used when applying for a federal grant: Mr. Khoa falsely claimed that he held a doctoral degree in the application for a grant from the Department of State. That was a criminal offense.
"When investigated, Mr. Khoa explained that other people showed respect to him and addressed him by the title Doctor, even though he objected. But such an explanation was not good because Mr. Khoa himself had claimed to have a doctoral degree in the resume he attached to the grant application.
"Perhaps Congressman [Dornan's] purpose was not to criminally prosecute Mr. Khoa or SEARAC but only to neutralize this trump card of the Department of State. Indeed, the Department of State later stopped using this trump card." (Italics added.)
In his declaration, Thang states he misstated the name of the Congressmember who authored the letter requesting an investigation into Khoa. It was Congressmember Robert K. Dornan, not Congressmember Christopher Smith. The misstatement is immaterial here. Accordingly, we correct the name in the text of this opinion. The remaining text, aside from a few additional brackets providing background, is the original text.
Thang asserted President William J. Clinton later vetoed House Bill No. 1561, but he sent a White House advisor to persuade the State Department to work with Congressmember Dornan and BPSOS "to craft a solution called ROVR." Thang stated ROVR derived from section 1104 of House Bill No. 1561, "not Gray Area or Track II as Mr. Khoa purported in his story."
IV.
THE TRIAL COURT GRANTS IN PART AND DENIES IN PART THE ANTI-SLAPP MOTION
The trial court granted in part and denied in part the anti-SLAPP motion. In granting the motion in part, the court struck from the complaint the negligent infliction of emotional distress cause of action. It also struck allegations of certain false statements from the defamation cause of action that are not at issue in this appeal.
In denying the motion in part, the court declined to strike the challenged statement (Khoa "declared falsely that he was a Ph.D. in his grant application to the state department. That is a criminal offense"). The court determined the challenged statement was protected activity, because Thang made the statement in a public forum, a website, in connection with an issue of public interest, ROVR. But the court held Khoa provided sufficient evidence to establish a probability of prevailing on his defamation cause of action as to the challenged statement.
The court also sustained Thang defendants' objection to a declaration submitted by Khoa. But it overruled their objections to Khoa's own declaration. Thang defendants timely appealed the trial court's order.
DISCUSSION
I.
ANTI-SLAPP AND THE GOVERNING STANDARD OF REVIEW
The anti-SLAPP statute aims to shield defendants from "lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances." (§ 425.16, subd. (a).) To mitigate such risks, "the statute authorizes a special motion to strike a claim '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.' (§ 425.16, subd. (b)(1)." (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884.) "The anti-SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity." (Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral).)
Courts evaluate anti-SLAPP motions through a two-step process. (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009.) First, "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." (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1061 (Park), quoting § 425.16, subd. (b)(1); see § 425.16, subd. (e) [defining protected activity].) Second, if the defendant satisfies the first step, the plaintiff must show "there is a probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1).) That is, the plaintiff must establish the claim has "at least 'minimal merit.'" (Park, supra, 2 Cal.5th at p. 1061.)
"We review de novo the grant or denial of an anti-SLAPP motion." (Park, supra, 2 Cal.5th at p. 1067.) "'"Thus, we apply our independent judgment, both to the issue of whether the cause of action arises from a protected activity and whether the plaintiff has shown a probability of prevailing on the claim."'" (Balla v. Hall (2021) 59 Cal.App.5th 652, 671.)
II.
WE ASSUME FOR PURPOSES OF OUR ANALYSIS THANG'S CHALLENGED STATEMENT AROSE FROM PROTECTED ACTIVITY
To carry its burden at step one, the moving defendant must establish "that the 'conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e) [of section 425.16]' [citation], and that the plaintiff's claims in fact arise from that conduct." (Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 620.) Typically, we would begin at step one. But we will assume for purposes of our analysis that Thang defendants carried their burden of demonstrating the challenged statement arose from protected activity under section 425.16, subdivision (e), as we have readily concluded Khoa established a probability of prevailing on his defamation claim.
III.
KHOA SHOWED A PROBABILITY OF PREVAILING ON THE MERITS
"The 'burden of establishing a probability of prevailing is not high ....'" (Issa v. Applegate (2019) 31 Cal.App.5th 689, 702 (Issa).) Claims need only have "'minimal merit'" to proceed. (Baral, supra, 1 Cal.5th at p. 385.) At step two, our focus is on "whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment." (Id. at pp. 384-385.) "[A] plaintiff seeking to demonstrate the merit of the claim 'may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.'" (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940 (Sweetwater).)
Step two is a "'summary-judgment-like procedure.'" (Baral, supra, 1 Cal.5th at p. 384.) We do "not weigh evidence or resolve conflicting factual claims." (Ibid.) The court "accepts the plaintiff's evidence as true, and evaluates the defendant's showing only to determine if it defeats the plaintiff's claim as a matter of law." (Id. at p. 385.) Any "'gaps in a party's evidentiary showing may certainly be filled by the opposing party's evidence.'" (Teamsters Local 2010 v. Regents of University of California (2019) 40 Cal.App.5th 659, 667.) "[W]e must credit all admissible evidence favorable to [the plaintiff] and indulge in every legitimate favorable inference that may be drawn from it." (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1238.) The defendant "can prevail either by establishing a defense or the absence of a necessary element." (Billauer v. Escobar-Eck (2023) 88 Cal.App.5th 953, 964-965 (Billauer).) But "[i]f there is a conflict in the evidence (the existence of a disputed material fact), the anti-SLAPP motion should be denied." (Id. at p. 965.)
A. Khoa States a Defamation Claim and Makes a Prima Facie Factual Showing
In his complaint, Khoa alleged a cause of action against Thang defendants for defamation. Specifically, Khoa alleged the challenged statement is libel per se. To state a prima facie case for defamation, a plaintiff must show: "(1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage." (Bishop v. The Bishop's School (2022) 86 Cal.App.5th 893, 909 (Bishop).) Defamation involves either libel or slander. (Civ. Code, § 44.) "Libel is the publication of an unprivileged written communication about the plaintiff that is false, defamatory, and has a natural tendency to injure." (Billauer, supra, 88 Cal.App.5th at p. 966.) "Libel per se is when the communication is defamatory without the need for explanatory matter." (Ibid., citing Civ. Code, § 45a.) "[F]alse accusations of crime are libel per se." (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1127 (Weinberg); 5 Witkin, Summary of Cal. Law (11th ed. 2017) Torts, § 639.)
"'A statement is not defamatory unless it can reasonably be viewed as declaring or implying a provably false factual assertion.'" (Bishop, supra, 86 Cal.App.5th at p. 909.) "Whether a statement declares or implies a provably false assertion of fact is a question of law for the court to decide [citations], unless the statement is susceptible of both an innocent and a libelous meaning, in which case the jury must decide how the statement was understood [citations]." (Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 385 (Franklin).)
In evaluating "whether a statement is [actionable] fact or [nonactionable] opinion, and whether a statement declares or implies a provably false factual assertion," we examine the totality of the circumstances. (Issa, supra, 31 Cal.App.5th at p. 703.) We first scrutinize the language of the statement and discern whether the language is understood "'"in a defamatory sense."'" (Ibid.) Then, we consider "'"the context in which the statement was made."'" (Ibid.)
"We also consider 'whether the reasonable or "average" reader would so interpret the material. [Citations.] The "average reader" is a reasonable member of the audience to which the material was originally addressed.'" (Edward v. Ellis (2021) 72 Cal.App.5th 780, 791 (Edward).)
We start with the content of the statement. Our concern is not with "'the literal truth or falsity of each word or detail used in a statement . . .; rather, the determinative question is whether the "gist or sting" of the statement is true or false, benign or defamatory, in substance.'" (Issa, supra, 31 Cal.App.5th at p. 702.) "'"'[I]f the defendant juxtaposes [a] series of facts so as to imply a defamatory connection between them, or [otherwise] creates a defamatory implication . . . he may be held responsible for the defamatory implication, . . . even though the particular facts are correct.'"'" (Issa, supra, 31 Cal.App.5th at p. 703.) "The 'pertinent question' is whether a 'reasonable fact finder' could conclude that the statements 'as a whole, or any of its parts, directly made or sufficiently implied a false assertion of defamatory fact that tended to injure' plaintiff's reputation." (Ibid.)
Here, Khoa based his defamation claim on the following statement in Thang's article: Khoa "'declared falsely that he was a Ph.D. in his grant application to the state department. That is a criminal offense.'" The first sentence of the statement accuses Khoa of mispresenting his academic credentials in a State Department grant application. Then, in the second sentence, "That is a criminal offense," the word "[t]hat" refers to Khoa's purported misrepresentation of academic credentials in the grant application. Thus, the entire statement implies Khoa's purported misrepresentation in the federal grant application was a crime. In other words, Thang accuses Khoa of committing a crime, an accusation that harms anyone's reputation. Such an accusation is defamatory. (Weinberg, supra, 110 Cal.App.4th at p. 1127.)
Next, we must consider the context in which the statement was made. "'[A] defamatory meaning must be found, if at all, in a reading of the publication as a whole.' [Citation.] 'Defamation actions cannot be based on snippets taken out of context.'" (Issa, supra, 31 Cal.App.5th at pp. 713-714.)
We turn to Thang defendants' translation of the article, which Khoa relies on in opposing the anti-SLAPP motion. As a whole, Thang's article rejected Khoa's history of ROVR and recounted Thang's version of events leading to the establishment of ROVR: the passage of section 1104 of House Bill No. 1561-the provision that, from Thang's perspective, created the framework for ROVR-and Khoa's opposition to it and therefore ROVR. Thang suggested Congressmember Dornan's letter may have been a political ploy to discredit Khoa, whom Thang perceived as a "dangerous" opponent to section 1104 of House Bill No. 1561. But, even if the letter's purpose was "to neutralize" Khoa, the letter still requested, in Thang's phrasing, a federal investigation into "Khoa and SEARAC on a fraudulent background statement used when applying for a federal grant." (Italics added.) The word "used," written in the past tense, suggests Khoa had already provided a fraudulent background statement in a federal grant application. Then, Thang specified the fraud: "Mr. Khoa falsely claimed that he held a doctoral degree in the application for a grant from the Department of State." Thang added, "That was a criminal offense," apparently to signify that Khoa's action was a crime. In context, the meaning of the challenged statement remains the same: because Khoa made a false claim in a grant application with the State Department, he committed a crime.
We note that Thang defendants' translation of the challenged statement largely resembles how it appears in Khoa's complaint. But there are two primary differences. First, they used "doctoral degree" whereas Khoa used "Ph.D." in the challenged statement. Second, Thang defendants wrote, "That was a criminal offense," while Khoa stated, "That is a criminal offense." (Italics added.) The differences are inconsequential. But because "the pleading itself provides the outer boundaries of the issues that are to be addressed in an anti-SLAPP motion," and because the complaint must identify "'the words constituting an alleged libel,'" we generally use Khoa's version of the challenged statement from his complaint in our analysis. (Medical Marijuana, Inc. v. ProjectCBD.com (2020) 46 Cal.App.5th 869, 884, 893 (Medical Marijuana).)
Next, we address whether that insinuation was a provably false assertion of fact. The insinuation-Khoa committed a crime because he made a false claim in a federal grant application-conveys a "factual proposition susceptible of proof or refutation." (Vogel v. Felice (2005) 127 Cal.App.4th 1006, 1020 (Vogel).) In his declaration, Khoa provided the following fact, "I have never made any grant or other application claiming to have a Ph.D. credential." This fact refutes the challenged statement-Khoa "declared falsely that he was a Ph.D. in his grant application to the state department. That is a criminal offense." Because Khoa stated he did not claim to have a Ph.D. in any grant or application, he could not have committed the alleged crime. At step two, we accept Khoa's evidence as true. We therefore find "'a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact.'" (Edward, supra, 72 Cal.App.5th at p. 790.)
Thang defendants interpret the challenged statement differently. They argue the correct reading of his statement should be: (1) a congressmember sent a letter requesting an investigation into Khoa's fraudulent statement in a federal grant application, and (2) making false representations in a federal grant application is a criminal offense. We disagree, as discussed above in our analysis of the challenged statement. In addition, to the extent Thang defendants intended to divide the challenged statement into portions and consider each separately, we reject such an approach. "[W]hen analyzing whether a particular publication or statement is defamatory, '[t]he publication in question may not be divided into segments and each portion treated as a separate unit; it must be read as a whole in order to understand its import and the effect that it was calculated to have on the reader, and construed in the light of the whole scope and apparent object of the writer, considering not only the actual language used, but the sense and meaning that may be fairly presumed to have been conveyed to those who read it.'" (Medical Marijuana, supra, 46 Cal.App.5th at pp. 888-889.)
B. Thang Defendants' Truth Defense Fails
"'The sine qua non of recovery for defamation . . . is the existence of falsehood.'" (Franklin, supra, 116 Cal.App.4th at p. 384.) Accordingly, "truth is a defense to" defamation. (Medical Marijuana, supra, 46 Cal.App.5th at p. 884.) "'[T]he defendant need not prove the literal truth of the allegedly libelous accusation, so long as the imputation is substantially true so as to justify the "gist or sting" of the remark.'" (Ibid.)
Thang defendants contend Congressmember Dornan's letter, cited in Thang's article, establishes the truth of the challenged statement. In the letter, dated April 30, 1996, Congressmember Dornan requested the Inspector General of the State Department to investigate certain concerns related to Khoa and SEARAC. One of these concerns was: "Mr. Khoa's self-promotion as a 'Ph.D.' However, he recently admitted that he does not have such a degree. His misrepresentation of academic credentials may have resulted in his receiving State Department grants over competing applicants." Congressmember Dornan did not state or imply Khoa misrepresented his academic credentials in a federal grant application and his misrepresentation was a crime. He did not specify where, in what medium, or to whom Khoa misrepresented his academic credentials. And, just as the trial court aptly found, Thang's article did not accurately describe Congressmember Dornan's letter. Rather, Congressmember Dornan flagged a concern that Khoa's misrepresentation of academic credentials may have benefited him in the federal grant process. The concern is sheer speculation. Even if the letter specified Khoa misrepresented his academic credentials in a federal grant application and his misrepresentation was a crime, that would be a recitation of the criminal allegations, not a showing of truth.
In their reply brief, Thang defendants argue for the first time another letter by Congressmember Dornan shows the truth of the challenged statement. "'"[T]he rule is that points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before."'" (Ione Valley Land, Air, & Water Defense Alliance, LLC v. County of Amador (2019) 33 Cal.App.5th 165, 173.) Absent any good reason, we decline to address their argument and deem it forfeited.
Even if we considered the merits of their argument, we would find it unavailing. In the letter, dated April 2, 1996, Congressmember Dornan informed the United States Office of Refugee Resettlement that he "uncovered troubling information regarding" SEARAC. Congressmember Dornan wrote, "[W]e have learned that [SEARAC] has misrepresented Le Xuan Khoa as a 'Doctor.' Recently, in the face of public inquiry, Mr. Khoa admitted that he is not a doctor."
This letter did not state or imply Khoa misrepresented his academic credentials. It alleged SEARAC did. While Khoa was affiliated with SEARAC, nothing in the record suggests they are the same. The letter offers no proof that Khoa mispresented his academic credentials in a federal grant application and that his misrepresentation was a crime. Thang defendants therefore fail to show the challenged statement is substantially true.
We conclude Khoa satisfied his burden of showing a probability of prevailing on his defamation claim. We reiterate that this burden is low. (Edward, supra, 72 Cal.App.5th at p. 794.) Under this low standard, Khoa stated a legally sufficient claim and made a prima facie factual showing of defamation. He demonstrated the challenged statement is "'a false assertion of defamatory fact that tended to injure' [his] reputation." (Issa, supra, 31 Cal.App.5th at p. 703.)
IV.
EVIDENTIARY OBJECTIONS
"'[T]he proper view of "admissible evidence" for purposes of the SLAPP statute is evidence which, by its nature, is capable of being admitted at trial, i.e., evidence which is competent, relevant and not barred by a substantive rule. Courts have thus excluded evidence which would be barred at trial by the hearsay rule, or because it is speculative, not based on personal knowledge or consists of impermissible opinion testimony. This type of evidence cannot be used by the plaintiff to establish a probability of success on the merits because it could never be introduced at trial.'" (Sweetwater, supra, 6 Cal.5th at p. 947.) "[A] plaintiff need not satisfy all preconditions to admissibility at the time of the anti-SLAPP hearing," but "the plaintiff nonetheless must demonstrate it is 'reasonably possible' the evidence 'will be admissible at trial.'" (Sanchez v. Bezos (2022) 80 Cal.App.5th 750, 777.)
"[T]he court may consider affidavits, declarations, and their equivalents if it is reasonably possible the proffered evidence set out in those statements will be admissible at trial." (Sweetwater, supra, 6 Cal.5th at p. 949.) At step two of the anti-SLAPP analysis, "the affidavit or declaration is offered to demonstrate that admissible evidence exists to prove plaintiff's claims. The statements must reflect that they were made by competent witnesses with personal knowledge of the facts they swear to be true." (Id. at pp. 944-945.) "[T]he written statements themselves need not be admissible at trial, but it must be reasonably possible that the facts asserted in those statements can be established by admissible evidence at trial." (Id. at p. 948, fn. 12.)
We review the trial court's rulings on evidentiary objections for abuse of discretion. (Geragos v. Abelyan (2023) 88 Cal.App.5th 1005, 1021.) "An erroneous evidentiary ruling requires reversal only if there is a reasonable probability that a result more favorable to the appealing party would have been reached in the absence of the error." (Ibid.)
In opposition to the anti-SLAPP motion, Khoa submitted two declarations, but only one, Khoa's declaration, remains in the case. In his declaration, Khoa stated in relevant part, "The Mach Song Media article accuses me of defrauding the U.S. government by falsely declaring in a government grant application that I have a Ph.D. credential, and that this is a criminal offense. This is not true. I have never made any grant or other application claiming to have a Ph.D. credential. This was a rumor circulated by Nguyen Dinh Thang back in 1990s, but it is not true and never has been."
Thang defendants argue the trial court should not have considered Khoa's declaration for three reasons. First, they contend that, because Khoa misinterpreted the challenged statement, Khoa's declaration ignored the substance of the statement and created a substantial danger of confusing the issues. As discussed above, we disagree with Thang defendants' interpretation of the statement and find Khoa's declaration responded to the substance of the challenged statement-that is, Khoa addressed the substance by stating he never claimed to hold a Ph.D. in any grant or application.
Second, Thang defendants argue Khoa's declaration failed to set forth facts and contained only self-serving opinion. Specifically, they argue Khoa's statement, "This is not true," is a self-serving opinion regarding the veracity of the challenged statement. In his declaration, Khoa recited the challenged statement in the article and stated, "This is not true." Read in isolation, the statement, "This is not true," appears to be a self-serving opinion. (See Industrial Waste & Debris Box Service, Inc. v. Murphy (2016) 4 Cal.App.5th 1135, 1159 ["mere assertions that a statement is 'false,' even in sworn declarations, do not satisfy a plaintiff's burden to demonstrate falsity"].) But immediately following this statement, Khoa elaborated and stated a fact: "I have never made any grant or other application claiming to have a Ph.D. credential." This statement is not a "simple negation of the challenged statement [that] fails to fairly meet its substance." (Vogel, supra, 127 Cal.App.4th at p. 1024, fn. 7.) Rather, it provides a fact that undermines the truth of the challenged statement.
Thang defendants question why Khoa did not submit a copy of the grant application to demonstrate the absence of a misrepresentation of academic credentials. But a similar question could be posed to Thang defendants-why did they not submit the grant application to establish the truth of Thang's statement? There are a host of reasons that might explain why the grant application is not in the record, including: (1) the grant application might not exist; (2) even if it exists, the grant application might be so old the parties may struggle to find it; (3) because the timing of an anti-SLAPP motion is so early in the case, the parties may not have had sufficient time to find the grant application; and (4) the parties may need to request the federal government to provide a copy of the grant application, and such a request could take time to process. Ultimately, the reasons why the parties did not submit the grant application is immaterial here. At the anti-SLAPP stage, it is reasonably possible that the facts asserted in Khoa's declaration "can be established by admissible evidence at trial." (Sweetwater, supra, 6 Cal.5th at p. 948, fn. 12.)
Finally, Thang defendants argue Khoa's declaration does not address whether a false claim in a federal grant application is a criminal offense. But the provably false assertion of fact here is not whether a false claim in a federal grant application is a criminal offense. Rather, it is whether Khoa committed a criminal offense by making a false claim in a federal grant application. Khoa denied committing the action underlying the alleged criminal offense. As discussed above, that is enough to refute the challenged statement and prevail here. Khoa need not address whether the action itself is a criminal offense.
We find the trial court did not abuse its discretion in considering Khoa's declaration in ruling on Thang defendants' anti-SLAPP motion.
DISPOSITION
The order is affirmed. Respondent is entitled to costs on appeal.
WE CONCUR: O'LEARY, P. J., SANCHEZ, J.