Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CV097518.
Bamattre-Manoukian, Acting P.J.
I. INTRODUCTION
This appeal arises from a defamation action involving the parties’ writings about each other in Vietnamese language newspapers. Appellant Tam Nguyen (Tam) filed a complaint in which he alleged that respondent Tron D. Do (Tron) had defamed him in a paid editorial published in the Tin Viet News newspaper. Tron filed a cross-complaint alleging that Tam had defamed him in an article he wrote for the SaigonUSA News (SaigonUSA) newspaper. The parties do not dispute that for purposes of their defamation claims they are limited public figures.
Since many of the parties and witnesses have the same surnames, for purposes of clarity we will follow the trial court’s practice of referring to the parties by their first names, Tam and Tron, in accordance with Vietnamese culture.
After a 12-day court trial, the trial court found in Tron’s favor on his cross-complaint and ruled against Tam on his complaint. The court determined that Tam’s statements in his SaigonUSA article constituted libel per se because the statements could be reasonably construed to accuse Tron of charity fraud and of willfully associating with Vietnamese communist leaders. The court awarded Tron general damages of $10,000 and punitive damages of $50,000. However, the court determined that Tron’s statements about Tam in his Tin Viet News paid editorial constituted constitutionally protected expressions of Tron’s opinions and awarded Tam nothing on his complaint.
On appeal, Tam contends that the trial court erred in finding that Tam’s statements in his SaigonUSA article constituted libel per se and in awarding Tron an excessive amount of general damages and punitive damages on the cross-complaint. Tam also contends that the trial court erred in finding that Tron’s statements in his paid editorial in the Tien Viet News were not actionable and awarding Tam nothing on his complaint. For reasons that we will explain, we find the award of punitive damages cannot be sustained due to the insufficient evidence of Tam’s financial condition, and we will strike the punitive damages award. We find no merit in Tam’s other contentions and therefore we will affirm the judgment as modified.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Pleadings
Tam, a self-represented litigant, filed a complaint against Tron and four other defendants, including Vien Thao Media, Tin Viet News, Tan Van Nguyen, and Thu Thi Tran, on October 26, 2007. The complaint included a single cause of action for “intentional tort” and alleged that “[t]he defendants, jointly and separately, published or caused to be published libelous statements in an article on page 21 of the Tin Viet news about plaintiff [Tam] in Vietnamese....” A copy of the original article in Vietnamese, dated August 23, 2007, and an English translation were attached as exhibits to the complaint.
The record reflects that Tam is an attorney licensed to practice law in California who maintains a law practice in San Jose, California.
Of the defendants, only respondent Tron is a party to this appeal.
Tam further alleged that the August 23, 2007 Tien Viet News article was widely disseminated in Santa Clara County, California, to “thousands of readers in the Vietnamese community where [Tam] lives and works, and, as a result, [Tam’s] reputation is severely damaged.” Tam also alleged that defendants had disseminated the article either with malice, knowledge that the statements were not true, or reckless disregard of the truth. He sought both compensatory and punitive damages.
Tron filed a cross-complaint against Tam and the SaigonUSA newspaper on March 3, 2008. The cross-complaint included a single cause of action for defamation, which was based on the allegations that Tam had published defamatory statements about Tron in an August 17, 2007 SaigonUSA article that was widely disseminated. Specifically, Tron claimed that the “libelous on their face” statements included: “(a) the special force [sic] received money from Vietnamese traitor [Tron]; (b) the incident involving the special force receiving money from [Tron] created an uproar at a dinner party given by the special force organization; (c) [Tron] solicited assistance from the Vietnamese Communist (‘VC’); (d) [Tron] gave money he received from charitable fund-raising events to the VC; who, in turn, used the money to bribe Cambodian officials; and (e) [Tron] attended a state dinner with Nguyen Minh Triet, the Head of the Vietnamese government.”
Tron also alleged in his cross-complaint that Tam had published the August 17, 2007 SaigonUSA article with knowledge that these statements were false or with reckless disregard for the truth. He asserted that he had served Tam with a demand for correction or retraction on September 6, 2007, pursuant to Civil Code section 48a. Tron sought general damages of $1 million and punitive damages.
All statutory references hereafter are to the Civil Code unless otherwise indicated.
B. The Court Trial
The complaint and cross-complaint were litigated in a 12-daycourt trial held in July 2009. A brief summary of the relevant trial testimony follows.
1. Tron’s Background
Tron came to the United States in 1981 after escaping from Vietnam. For the past 26 years he has operated a Vietnamese language media company, Vien Thao Media. Tron’s media endeavors in San Jose include a radio broadcast of a daily talk show, a daily television program, the “Vietnamese Yellow Page, ” and a weekly magazine. He has also engaged in charity work, including helping the homeless in San Jose and organizing musical shows to raise funds for the victims of floods, typhoons, and tsunamis in Vietnam and the victims of the September 11, 2001 terrorist attacks in New York. Additionally, he has organized musical shows to raise funds to aid blind people in Vietnam.
The fund-raising musical shows sponsored by Tron were each attended by approximately 10, 000 to 20, 000 people. Tron did not receive or handle any of the funds raised. His role was to organize and direct the musical shows. As to the funds raised for charity work in Vietnam, Tron worked with local organizations in Vietnam and, although Vietnamese government authorization was required, he did not give any money to the communist government. Tron does not believe that any of the funds he raised for charity work in Vietnam have been diverted for use in communist propaganda.
Tron attended a dinner honoring Vietnamese Special Forces veterans where he made a $3,500 donation. Of that amount, $3,000 was paid for a gold-plated painting and $500 was paid for a book about the special forces. Tron gave the painting to a member of the special forces, My Hoang Dinh, who was imprisoned for 31 years.
2. Tam’s Background
Tam escaped from Vietnam in 1975, when he was a first-year journalism student. After arriving in the United States, he attended college and completed a degree in music. In 1979, Tam moved to California where he worked as an engineer, obtained an MBA, and attended law school. He passed the California bar exam in 1992, but he was disciplined by the State Bar in 2004 for a problem with his trust account that occurred, according to Tam, because his wife did not follow proper procedures in managing the account.
Since 1997, Tam has been the owner and publisher of the SaigonUSA newspaper. He has total control of its contents and he also writes articles. SaigonUSA takes positions on controversial issues in the Vietnamese community and has published approximately six articles about Tron. The paper is distributed widely in the San Jose area.
In the 1990’s, Tam belonged to an educational group that attempted to fight communism by teaching English as a second language in Vietnam. Through this group, Tam taught English in Vietnam for several years. While he was teaching in Vietnam, he was taken by the “secret police” to meet the Vietnamese prime minister and was forced to pose for a photograph with him.
Tam and Tron were both refugees in the San Jose area and have known each other for a long time. When Tam was in law school, he worked for Tron and they were friends. Tron ceased to consider Tam a friend several years ago, when Tam accused Tron of being a communist in articles in the SaigonUSA newspaper. In the Vietnamese community, it is very important to determine whether someone is a communist.
Tam originally admired Tron for his good works, but he later came to believe that Tron had demanded kickbacks for his charitable contributions and had allowed the funds he brought to Vietnam to be used to support communist propaganda. According to Tam, the Vietnamese community has turned against Tron and considers him to be a “turncoat.” Tam also believes that when Tron attended the special forces dinner and donated money, he was trying to “buy his way back into the community.”
3. Tam’s SaigonUSA Article
Before publishing the August 17, 2007 article about Tron in the SaigonUSA newspaper, Tam joined in the Vietnamese community’s protests against Tron’s alleged position that the United States’ normalization of relations with Vietnam meant that they “should be happy as a big new family” under “great leadership” in Vietnam. Tam asserted that he published the article in SaigonUSA to report, in a truthful manner, the community’s reaction to Tron having dinner with the president of Vietnam. Tam also believed that Tron was a traitor.
The August 17, 2007 SaigonUSA article included five statements (in English translation) that Tron claimed were defamatory: “(a) the special force [sic] received money from Vietnamese traitor [Tron]; (b) the incident involving the special force receiving money from [Tron] created an uproar at a dinner party given by the special force organization; (c) [Tron] solicited assistance from the Vietnamese Communist (‘VC’); (d) [Tron] gave money he received from charitable fund-raising events to the VC; who, in turn, used the money to bribe Cambodian officials; and (e) [Tron] attended a state dinner with Nguyen Minh Triet, the Head of the Vietnamese government.”
Tam believed that he had proof that Tron was raising charitable funds with the intention of giving the money to the Viet Cong. The proof consisted of a photograph of Tron holding a symbolic $1.1 million check while “surrounded by high ranking officials in Vietnam.” Tam thought that Tron could help people without associating with Vietnamese officials. He subpoenaed records from the Red Cross regarding Tron’s fund-raising but was told the Red Cross had no records.
As to the truth of Tron’s attendance at a dinner honoring the Vietnamese president, Nguyen Minh Triet, Tam relied upon an email from “Toa Do” listing the people who had attended the dinner, including Tron. Tam did not contact Toa Do or otherwise verify the email, but he determined that it was true because he believed that Tron had attended a dinner with another Vietnamese official less than a year before. Tam acknowledged, however, that the email list of persons who attended the dinner was created by unknown persons in Southern California who claimed to identify persons in attendance at the dinner and sent the email list to the Vietnamese community around the world.
Tron demanded a retraction of the August 17, 2007 SaigonUSA article and Tam published a retraction on an unspecified date. The retraction referred to Tron by his “real name, ” Tron Dinh Do, rather than Tron’s pen name, Tron Van Do, which had been used to identify him in the August 17, 2007 SaigonUSA article. The retraction included a complete reprint of the August 17, 2007 article in Vietnamese and, at the top of the retraction, these statements in English: “Dear Readers [¶] Pursuant to California Civil Code Section 48 a SaigonUSA News hereby publishes this retraction at the request of Mr. Tron Din Do as follows: [¶] 1. Tron Dinh Do did not attend the banquet honoring Vietnam President Nguyen Minh Triet[;] [¶] 2. Tron Dinh Do is not a traitor; [and] [¶] 3. Tron Dinh Do did not send money to Cambodia for communist propaganda[.]”
According to Tron, Tam’s August 17, 2007 SaigonUSA article damaged his reputation and endangered his personal safety. He ceased doing charitable work in 2005 because Tam had called him a communist and “that would distance people away from doing anything charitable for me.”
4. Tron’s Tien Viet News Paid Editorial
Defendant Thu Thi Tran (Thu) is the owner and publisher the Tien Viet News newspaper and is responsible for managing the business. Her husband, Tan Van Nguyen (Tan), is the editor. The weekly newspaper is free and widely available in the Vietnamese community.
The Tien Viet News allows individuals to purchase a page in the newspaper in the section headlined Bai Cay Dang. The cost is $150 for a full page editorial or advertisement. Tron paid for a full page editorial in the Bai Cay Dang section on August 23, 2007. Tan typeset the editorial exactly as it was written by Tron. Tan also included an editor’s note on the page giving Tam the opportunity to respond to Tron’s paid editorial.
Tam claimed that the following 17 statements (in English translation) in Tron’s paid editorial of August 23, 2007 were defamatory: (1) “Is it true that few months ago you went to Vietnam to take order from the Counter Intelligence Agency from Ha Noi to destroy ou[r] community?” (2) “This boy Tam may be suffering from sexual and psychological disorder?” (3) “You used your newspaper Saigon USA to curse at her and defame her as a communist, and traitor.” (4) “Mr. Tu Trien Thanh is only a simpl[e] businessman. It’s not clear whether Mr. Tu did offend you in any way or he did not advertise on your newspaper then you defamed him.” (5) “Mr. Tam! How cruel you are when the Hung Ly family was languishing in prison but you viciously set out to destroy them.” (6) “Mr. Tam! Do you know that the elders hate you to their gut and bone?” (7) “This restaurant will respectfully welcome everyone including the homeless, except Tam Nguyen.” (8) “You even embraced my father and said that ‘you must be so proud to have such a good son like [Tron], and I would like to be a son to you.’ But you then turned around and curse at my father so badly.” (9) “Mr. Nhon Huu Do, chairman of the Special Forces Veterans and also a friend from the same Quang Nam province with you and you even once called him God-Father. But you also accused him of such and such a crime.” (10) “A close friend of him even said ‘God damn him! Even a prostitute all over the world still spare a little corner space. How dare he curse at the gold old Mr. Nhon.” (11) “You even want to become a musician, but I am afraid that your ‘red music’ is not appropriate for everyone.” (12) “Some senior officers has teased Du Phon ‘so you still work for the boy Tam the traitor?’ ” (13) “You humbled yourself and whimpered ‘Dear Sir, Yes Sir with Vietnamese Communist.” (14) “Mr. Tam! You went to Vietnam and made boastful announcements. It is true that you have been recommended by Dr. Dung, the current vice minister of counter-intelligence agency in Hanoi to work with the communist department of justice to make laws punishing the ‘reactionary Vietkieus’?” (15) “How many times Mr. Truong Thanh, the first Deputy of the Vietnamese Communist Embassy in New York came to your office and held meetings on how to fight the ‘Vietkieus’? The picture taken of you is so fresh.” (16) “You would like very much to have your photograph be posted everywhere to score credit with the politburo.”; and (17) “Someone else also asked me ‘Does Tam is part [sic] of the Hanoi Counter Intelligence agency? If so, he must know the name of the secret police who muffle the mouth of Father Ly?’ ”
Since the August 23, 2007 paid editorial expressed Tron’s opinion, Tan was not concerned about its content. Tan trusted Tron and believed that the paid editorial was reliable. He knew that Tron had published the paid editorial in response to Tam’s article in SaigonUSA stating that Tron was a traitor. However, Tan did not have any proof that Tron’s statements about Tam were true.
Tron acknowledged that he wrote the August 23, 2007 paid editorial, which was also broadcast on Tron’s radio station. Tron’s purpose in writing the article was to warn Tam about his inappropriate activities and to respond to the accusations that Tam had made against him in Tam’s SaigonUSA article. Tron also wanted Tam to respond to speculation in the Vietnamese community about Tam’s trips to Vietnam. The allegations in the paid editorial referring to Tam as a communist were based Tam’s photograph with the “prime minister of the communist regime” and the fact that Tam was not arrested when he returned to Vietnam, unlike an “anti-communist” person.
Tam brought a separate action against Tron and other defendants arising from the radio broadcast of the August 23, 2007 paid editorial. That action was the subject of this court’s decision in Nguyen v. KSJX-AM 1500 (H032686, Apr. 17, 2009 [nonpub. opn.]) reversing the order denying defendants’ special motion to strike the complaint pursuant to Code of Civil Procedure section 425.16.
Tam denied the truth of any of the allegations in the August 23, 2007 paid editorial, including the allegations that he was receiving orders from the Vietnamese government or had participated in a plan to fight the “Vietnamese overseas.” He believes that his reputation in the community and in his profession have been damaged by Tron’s “vicious attack” on him.
C. The Statement of Decision and Judgment
The trial court issued its tentative decision on November 30, 2009, in which the court tentatively found in Tron’s favor on the cross-complaint and awarded him general damages of $10,000 and punitive damages of $100,000, and awarded Tam nothing on his complaint. Tam filed his objections to the tentative decision on December 15, 2009. Among other things, Tam argued that the award of punitive damages of $100,000 was excessive. In response, the trial court issued its December 24, 2009 order requiring the parties and their attorneys to appear at a January 15, 2010 hearing on punitive damages. After holding the hearing on punitive damages, during which the trial court inquired about Tam’s financial condition, the court issued its January 29, 2010 statement of decision.
Regarding Tam’s complaint, after considering the totality of the circumstances and analyzing Tron’s August 23, 2007 Tien Viet News paid editorial as a whole, the trial court rejected Tam’s claim that 17 statements in the paid editorial were defamatory. The court found that the relevant circumstances included: (1) readers were given written notice that the statements were contained in a paid editorial and were the opinion of the author and not the newspaper; (2) Tron was responding to numerous critical articles that Tam had written about him; and (3) due to the setting for the statements, the audience would anticipate efforts by the parties to persuade others of their position by using epithets, fiery rhetoric or hyperbole (citing this court’s decision in Fletcher v. San Jose Mercury News (1989) 216 Cal.App.3d 172 (Fletcher)). The court concluded that the 17 statements at issue constituted nonactionable opinions conveyed in “hyperbolic language and fiery rhetoric.”
As to Tron’s cross-complaint, the trial court determined that two statements in Tam’s August 17, 2007 article in SaigonUSA constituted libel per se. The court found that the first statement, “[Tron] has raised money and brought it to the Viet Cong, instead of using it to treat eyes for the poor in Vietnam, the Viet Cong used the money in propaganda to win praise of the Cambodian, ” would be reasonably understood as a statement of fact that accused Tron of committing a crime by misusing charitable funds and would harm Tron’s reputation. The second statement, “[Tron] most recently attended a reception to entertain Vietnamese Communist President Triet Minh Nguyen!” also constituted libel per se, the court found, because the statement “did communicate to a ‘reasonable reader’ that [Tron] willfully associated with a communist leader and gave money to the communists which is a taboo within the Vietnamese community....”
The trial court also determined that Tam had admitted that he did not investigate the truth of his statements about Tron before publishing them, did not know the people who sent the emails on which he relied for the information about Tron, and had no reason to believe that Tron was assisting the Vietnamese government with propaganda. The court therefore found that Tam “knew the statements were false, or had a serious doubt about their veracity when he reprinted the libelous rumors and gossip contained in the emails. Moreover, Mr. Tam acted in reckless disregard for the truth of the facts stated in the reprinted article when he failed to investigate the allegations contained therein and relied on information from unknown and unreliable sources. Consequently, the Court finds that there is clear and convincing evidence that [Tam] acted with ‘actual malice’ as defined in New York Times Co. v. Sullivan (1964) 376 U.S. 254.”
Before awarding damages, the trial court ruled on Tam’s claim that he had printed an adequate retraction of the August 17, 2007 SaigonUSA article and therefore general and punitive damages were precluded under section 48a. The court found that the retraction was insufficient because “it was not published in substantially as conspicuous a manner as was the libelous article and the Vietnamese version of the retraction referenced a nonexistent code section. Mr. Tron may therefore recover general, special and exemplary damages where proved.”
The trial court then made several rulings regarding damages. The court determined there was insufficient evidence to support an award of special damages to Tron. However, the court awarded Tron $10,000 in general damages, based on the trial court’s finding that the evidence showed that Tron had a good reputation in the Vietnamese community and his reputation could be tarnished by accusations of charity fraud and being called a communist, “which is unacceptable to the Vietnamese community and is cause to be shunned by the community.” The court also awarded Tron $50,000 in punitive damages after ruling that Tam showed actual malice in publishing the August 17, 2007 article in SaigonUSA. The ruling on actual malice was based upon the court’s findings that (1) Tam’s statements accusing Tron of charity fraud and denouncing Tron as a communist were false; (2) Tam had no reason to believe that the statements were true; and (3) a judgment against Tam had been entered in a previous defamation action in which Tam had libeled Tron by accusing him of criminal activities.
A judgment in the total amount of $67,068.71 was entered on June 17, 2010. The $67,068.71 total included general damages of $10,000; punitive damages of $50,000; and costs of $7,068.71. Tam filed a timely notice of appeal from the judgment on July 1, 2010.
III. DISCUSSION
We understand Tam to raise the following issues on appeal: (1) Tam’s statements in his SaigonUSA article did not constitute libel per se; (2) The evidence was insufficient to show that Tam acted with actual malice in publishing the SaigonUSA article; (3) The SaigonUSA article constitutes nonactionable opinion about a public issue; (4) The retraction of the August 23, 2007 SaigonUSA article was sufficient under section 48a and therefore general and punitive damages may not be awarded; (5) Alternatively, the awards of general and punitive damages were excessive; and (6) The statements in Tron’s paid editorial of August 17, 2007 in the Tien Viet News are defamatory and Tron acted with actual malice in making the statements. We will address each issue in turn.
A. The SaigonUSA Article
The trial court determined that two statements in Tam’s August 17, 2007 SaigonUSA article constituted libel per se and awarded Tron damages on his cross-complaint.
The court found that the first statement, “[Tron] has raised money and brought it to the Viet Cong, instead of using it to treat eyes for the poor in Vietnam, the Viet Cong used the money in propaganda to win praise of the Cambodian, ” would be reasonably understood as a statement of fact that accused Tron of committing a crime by misusing charitable funds. The second statement, “[Tron] most recently attended a reception to entertain Vietnamese Communist President Triet Minh Nguyen!” also constituted libel per se, the court found, because the statement communicated to a reasonable reader that Tron had willfully associated with a communist leader.
Tam contends that the trial court erred in finding that these two statements constituted libel per se because extrinsic evidence is required to understand their defamatory meaning. Tron responds that the statements constitute libel per se because he is accused of committing a crime by misusing charitable funds and of associating with communists.
Before addressing the applicable standard of review, which the parties failed to discuss, we will provide an overview of the general rules governing libel claims. “Defamation constitutes an injury to reputation; the injury may occur by means of libel or slander. ([§] 44.) In general... a written communication that is false, that is not protected by any privilege, and that exposes a person to contempt or ridicule or certain other reputational injuries, constitutes libel. ([§] 45[.])” (Shively v. Bozanich (2003) 31 Cal.4th 1230, 1242.)
Section 45 provides, “Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.”
This court has previously stated, “The definition of libel—a false and unprivileged publication ‘which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation’ (Civ. Code, § 45)—assumes that the reader of a libel will recognize it as such. If no reasonable reader would perceive in a false and unprivileged publication a meaning which tended to injure the subject’s reputation in any of the enumerated respects, then there is no libel at all. If such a reader would perceive a defamatory meaning without extrinsic aid beyond his or her own intelligence and common sense, then... there is a libel per se. But if the reader would be able to recognize a defamatory meaning only by virtue of his or her knowledge of specific facts and circumstances, extrinsic to the publication, which are not matters of common knowledge rationally attributed to all reasonable persons, then... the libel cannot be libel per se but will be libel per quod.” (Barnes-Hind v. Superior Court (1986) 181 Cal.App.3d 377, 386-387.)
The distinction between libel per se and libel per quod is important because it affects the burden of proof with respect to damages. Section 45a provides that “[d]efamatory language that is not libelous on its face is not actionable unless the plaintiff alleges and proves that he has suffered special damage as a proximate result thereof.” On the other hand, where the defamatory language constitutes libel per se because it is defamatory on its face, “damage to plaintiff’s reputation is conclusively presumed and he [or she] need not introduce any evidence of actual damages in order to obtain or sustain an award of damages. [Citations.]” (Contento v. Mitchell (1972) 28 Cal.App.3d 356, 358.)
As to the applicable standard of review, the California Supreme Court’s decision in MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536 (MacLeod) is particularly instructive. In MacLeod, the plaintiff alleged that the defendant’s newspaper article constituted libel per se because it “was intended to be and was understood as charging that he was a communist sympathizer or fellow traveler.” (MacLeod, supra, 52 Cal.2d at p. 546.) The court described the standard of review as follows: “Whether or not the article is reasonably susceptible of this interpretation is a question for the court and, if so, whether or not it was so understood is a question for the jury. [Citations.]” (Ibid.)
The standard of review under MacLeod therefore involves two steps. First, the reviewing court independently determines, as a question of law, whether the statement at issue is reasonably susceptible of a defamatory interpretation. (MacLeod, supra, 52 Cal.2d at p. 546; see also Selleck v. Globe International, Inc. (1985) 166 Cal.App.3d 1123, 1132.) Second, the reviewing court determines if substantial evidence supports the trier of fact’s factual finding that the statement was understood as defamatory. (MacLeod, supra, 52 Cal.2d at p. 546; see also Haworth v. Superior Court (2010) 50 Cal.4th 372, 384.)
Applying the standard of review set forth in MacLeod, we first independently determine, as a matter of law, whether the first statement, “[Tron] has raised money and brought it to the Viet Cong, instead of using it to treat eyes for the poor in Vietnam, the Viet Cong used the money in propaganda to win praise of the Cambodian, ” is reasonably susceptible of a defamatory interpretation. “Perhaps the clearest example of libel per se is an accusation of crime.” (Barnes-Hind, Inc. v. Superior Court, supra, 181 Cal.App.3d at p. 385.) We find that the statement is reasonably susceptible of being understood to accuse Tron of committing a crime in connection with the funds raised for charity, such as theft (Pen. Code, § 484, subd. (a)) or defrauding a person of money by false pretenses (Pen. Code, § 532, subd. (a).)
Second, we determine whether substantial evidence supports the implicit factual finding by the trial court, sitting as the trier of fact, that the statement “[Tron] has raised money and brought it to the Viet Cong, instead of using it to treat eyes for the poor in Vietnam, the Viet Cong used the money in propaganda to win praise of the Cambodian, ” was actually understood to accuse Tron of committing a crime. (MacLeod, supra, 52 Cal.2d at p. 546.) Tam has not, and cannot, argue that the trial court’s finding on this question of fact is not supported by substantial evidence, since there is no other reasonable understanding of the statement other than as an accusation of crime.
Again applying the MacLeod standard of review, we determine that the second statement, “[Tron] most recently attended a reception to entertain Vietnamese Communist President Triet Minh Nguyen!” also constitutes libel per se. As the trial court found, the statement on its face communicates to a reasonable reader of the Vietnamese language SaigonUSA newspaper that Tron willfully associated with a Vietnamese communist leader. The trial court also found, and Tam does not contend otherwise, that the parties agreed that “being called a communist or being aligned with the communist in Vietnam is unacceptable to the Vietnamese community and is cause to be shunned by the community.” (See, e.g., Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858, 869 [plaintiff showed probability of prevailing in defamation action arising from accusation that a Vietnamese-American candidate for superintendent of schools was a communist].) Tam does not dispute that a reasonable reader of his SaigonUSA article would actually understand the article to accuse Tron of willfully associating with a Vietnamese communist leader.
However, Tam argues that the statement does not constitute libel per se because the correct English translation of the statement omits the phrase “Vietnamese Communist President Triet Minh Nguyen” and instead merely refers to “VC Nguyen Minh Triet.” Tam’s argument is flawed because he does not include a record cite for his English translation or otherwise show that his English translation was included in the evidence admitted at trial. “We are not required to search the record to ascertain whether it contains support for [appellant’s] contentions. [Citation.]” (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545.)
Additionally, the English translation on which the trial court made its ruling is essentially consistent with, although not identical to, the English translation contained in Tron’s cross-complaint. The English translation included in the cross-complaint states, “The statements published in [Tam’s] August 17, 2007 SaigonUSA newspaper, which are libelous on their face, alleged that:... [Tron] attended a state dinner with Nguyen Minh Triet, the Head of the Vietnamese government.” We also note that Tam testified at trial that Triet Minh Nguyen is “the president of communist Vietnam.”
We therefore conclude that the trial court properly determined that two statements in Tam’s August 17, 2007 SaigonUSA article constituted libel per se.
B. Actual Malice
In its statement of decision, the trial court noted that Tron had agreed that he was a limited public figure for purposes of the trial. A limited public figure is an individual who “voluntarily injects himself [or herself] or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.” (Khawar v. Globe Internat., Inc. (1998) 19 Cal.4th 254, 263 (Khawar).) Under the First Amendment, a public figure cannot recover damages for a defamatory statement unless he or she “ ‘proves that the statement was made with “actual malice”—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.’ [Citation].” (Id. at p. 262, quoting New York Times Co. v. Sullivan, supra, 376 U.S. at pp. 279-280.)
Accordingly, the trial court addressed the issue of whether Tam acted with actual malice in publishing the August 17, 2007 SaigonUSA article defaming Tron. The court found that “Mr. Tam admitted that he did not investigate the veracity of the statements before he printed them. Mr. Tam merely claims to have read about a dozen emails from a news list he subscribed to and reprinted information contained in two emails because he thought they represented the thoughts of the community. Mr. Tam testified that he did not know the people who sent the emails and did not know anything about them and therefore, he cannot claim that they were reliable sources of information.” Further, the court found that Tam had not substantiated his claims that Tron had mishandled charitable funds and also had no basis to believe that Tron was assisting the Vietnamese government with its propaganda.
The trial court therefore ruled that “the evidence is clear and convincing that Mr. Tam knew the statements were false, or had a serious doubt as to their veracity when he reprinted the libelous rumors and gossip contained in the emails. Moreover, Mr. Tam acted in a reckless disregard for the truth of the facts stated in the reprinted article when he failed to investigate the allegations contained therein and relied on information from unknown and unreliable sources. Consequently, the Court finds that there is clear and convincing evidence that defendant acted with ‘actual malice’ as defined in New York Times Co. v. Sullivan[, supra, ] 376 U.S. 254.”
Tam contends that the trial court erred in finding actual malice because he “truly believed that the facts as contained the article about [Tron] [were] true.” He also contends that the evidence demonstrated there were “many credible sources of information about [Tron’s] activities that placed him in close ties with the communist officials, ” such as two trial exhibits showing that “the official media outlet for the Vietnam Communist Party” mentioned Tron. Alternatively, Tam maintains that he had no duty to investigate the statements about Tron.
Tron disagrees, arguing that the evidence showed that Tam failed to investigate or verify the accusations that Tron had committed charity fraud and had ties to the communist government in Vietnam, and instead relied upon “random emails” that Tam received from “unknown sources.” Tron also asserts that Tam’s “hatred and ill will” towards him, as well as Tam’s failure to properly retract the August 17, 2007 SaigonUSA article, supports an inference of malice.
The California Supreme Court has described the standard governing the determination of actual malice: “Actual malice is judged by a subjective standard; otherwise stated, ‘there must be sufficient evidence to permit the conclusion that the defendant... had a “high degree of awareness of... probable falsity.” ’ [Citation.] To prove this culpable mental state, the plaintiff may rely on circumstantial evidence, including evidence of motive and failure to adhere to professional standards. [Citations.] When... a finding of actual malice is based on the republication of a third party’s defamatory falsehoods, ‘failure to investigate before publishing, even when a reasonably prudent person would have done so, is not sufficient.’ [Citation.] Nonetheless, the actual malice finding may be upheld ‘ “where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports” ’ [citation], and the republisher failed to interview obvious witnesses who could have confirmed or disproved the allegations [citation] or to consult relevant documentary sources [citation].” (Khawar, supra, 19 Cal.4th at pp. 275-276.) Similarly, “malice may be inferred where, for example, ‘a story is fabricated by the defendant, is the product of his [or her] imagination, or is based wholly on an unverified anonymous telephone call.’ [Citation.]” (Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71, 85, quoting St. Amant v. Thompson (1968) 390 U.S. 727, 732.)
The Khawar court also addressed the applicable standard of review: “When a finding of actual malice is challenged on appeal, the reviewing court ‘must exercise independent judgment and determine whether the record establishes actual malice with convincing clarity.’ [Citations.] This means that although ‘credibility determinations are reviewed under the clearly-erroneous standard because the trier of fact has had the “opportunity to observe the demeanor of the witnesses, ” ’ the reviewing court must ‘consider the factual record in full’ and ‘must “ ‘examine for [itself] the statements in issue and the circumstances under which they were made to see... whether they are of a character which the principles of the First Amendment... protect.]’ ” ’ [Citations.]” (Khawar, supra, 19 Cal.4th at p. 275.) Thus, “[c]ourts must make an independent constitutional judgment on the facts of the case. [Citation.]” (Fletcher, supra, 216 Cal.App.3d at p. 185.)
In Khawar, the California Supreme Court ruled that there were obvious reasons to doubt the accuracy of a book falsely accusing the plaintiff of assassinating Robert Kennedy. (Khawar, supra, 19 Cal.4th at p. 276.) Since the claim was an inherently defamatory accusation against the plaintiff, the jury could properly conclude that the defendants acted with actual malice in republishing that false accusation “if it found also, as it impliedly did, that Globe [tabloid newspaper] failed to use readily available means to verify the accuracy of the claim by interviewing obvious witnesses who could have confirmed or disproved the allegations or by inspecting relevant documents or other evidence. [Citation.]” (Ibid.) The court further determined that the trial evidence supported the jury’s implied finding that Globe’s reporter and editors did not make “any such effort.” (Ibid.) Consequently, the court concluded that clear and convincing evidence supported the jury’s finding that the Globe acted with actual malice in republishing the book’s false accusation. (Id. at p. 279.)
We determine that the present case is similar to Khawar. As we have discussed, two statements in the August 17, 2007 SaigonUSA article constituted libel per se: (1) “[Tron] has raised money and brought it to the Viet Cong, instead of using it to treat eyes for the poor in Vietnam, the Viet Cong used the money in propaganda to win praise of the Cambodian”; and (2) “[Tron] most recently attended a reception to entertain Vietnamese Communist President Triet Minh Nguyen!” Tam testified that his basis for accusing Tron of raising charitable funds with the intention of giving the money to the Viet Cong was a photograph of Tron holding a symbolic $1.1 million check for charity while “surrounded by high ranking officials in Vietnam.” Tam also attempted to subpoena records from the Red Cross regarding Tron’s fundraising, and relied on the Red Cross’s response that it did not have any such records.
We find that Tam had no basis for believing that the first statement accusing Tron of charity fraud was accurate. The photograph of Tron holding a symbolic $1.1 million check while surrounded by Vietnamese officials does not reflect an obvious intention to divert the charitable funds he had raised to the Viet Cong for propaganda purposes. We have also reviewed the letter to Tam from the Red Cross, dated July 31, 2008, regarding records of Tron’s donations. The letter states that the Red Cross has not done a “complete and thorough search, ” has not found any donations made by Vien Thao Media or Tron Dinh Do, and does not have any knowledge as to whether donors were members of the Vietnamese-American community. In light of Tron’s undisputed testimony that he did not personally handle any of the funds raised at his charity musical shows, we find that the Red Cross’s letter also provides no basis for believing the accusation of charity fraud. Furthermore, Tam made no other efforts to verify his claim that Tron had diverted funds raised for charitable purposes to the Viet Cong. We therefore determine that clear and convincing evidence supports the trial court’s finding that Tam acted with actual malice in republishing the false accusation of charity fraud. (Khawar, supra, 19 Cal.4th at p. 279.)
As to the second statement accusing Tron of attending a dinner honoring the Vietnamese president, Tam’s asserted basis for believing the statement was true was an email from “Toa Do” listing the people who had attended the dinner, which included Tron. Tam testified that the email list was created by unnamed “people in Southern California” who “thought they identified the name of [the people] in attendance and they sent this E-mail to all Vietnamese community around the world and [Tam] received it.” Tam did not contact Toa Do or otherwise verify the email. Instead, he thought the email was true because he believed that Tron had attended a dinner with another Vietnamese official less than a year before. We determine that in the absence of any efforts by Tam to verify the anonymous and inherently defamatory email accusation that Tron had willfully associated with a Vietnamese communist official, we may properly infer Tam’s actual malice in republishing the accusation. (Christian Research Institute v. Alnor, supra, 148 Cal.App.4th at p. 85 [malice may be inferred where story based entirely on an unverified anonymous telephone call].)
For these reasons, we have independently determined that clear and convincing evidence shows that Tam acted with actual malice in publishing the two defamatory statements contained in the August 17, 2007 SaigonUSA article.
C. Nonactionable Opinion
Tam also contends that his statements about Tron in the August 17, 2007 SaigonUSA article constitute nonactionable “fair comment, fair reporting, or opinion about a public issue concerning the Vietnamese community.”
Relying on this court’s decision in Fletcher, supra, 216 Cal.App.3d 172, Tam argues that the trial court erred in finding that Tron’s paid editorial in the Tien Viet News was nonactionable opinion while failing to make the same ruling with respect to Tam’s SaigonUSA article. In particular, Tam asserts that the statement in the SaigonUSA about the special forces’ acceptance of a $3,000 donation from Tron “was an opinion piece by the veterans and other community members” in reaction to the donation.
However, Tam does not provide any argument regarding his assertion that the SaigonUSA article constitutes fair comment or fair reporting, and therefore we will not consider it. “ ‘[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citations.]’ [Citations.]” (People v. Stanley (1995) 10 Cal.4th 764, 793.)
Responding to Tam’s contention that the statements in the SaigonUSA article were nonactionable opinion, Tron argues that the statements constitute provable assertions of fact rather than nonactionable opinion. We agree.
The United States Supreme Court in Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1 (Milkovich) established that there was no “wholesale defamation exemption” for any statement that was labeled an “ ‘opinion.’ ” (Id. at p. 18.) The court reasoned that “[n]ot only would such an interpretation be contrary to the tenor and context of the passage, but it would also ignore the fact that expressions of ‘opinion’ may often imply an assertion of objective fact.” (Ibid.) Accordingly, a statement of “opinion” that “reasonably implies false and defamatory facts regarding public figures or officials” is actionable. (Id. at p. 20.)
Thus, “after Milkovich, the question is not strictly whether the published statement is fact or opinion. Rather, the dispositive question is whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact. [Citations.]” (Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 385 (Franklin).) “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].” (Ibid.)
To determine whether an allegedly defamatory statement constitutes a provably false assertion of fact, we apply the totality of the circumstances test. (Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 260.) “First, the language of the statement is examined. For the words to be defamatory, they must be understood in a defamatory sense. [Citations.]” (Ibid.) “ ‘ “Next, the context in which the statement was made must be considered... [¶] This contextual analysis demands that the courts look at the nature and full content of the communication and to the knowledge and understanding of the audience to whom the publication was directed.” ’ [Citations.]” (Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1608.)
In Milkovich, the issue was whether statements in a newspaper implying that a high school wrestling coach had lied under oath during trial testimony about a wrestling match incident constituted protected opinion. (Milkovich, supra, 497 U.S. at p. 3.) The Supreme Court determined that the dispositive question was whether “a reasonable factfinder could conclude that the statements... imply an assertion that the [wrestling coach] perjured himself in a judicial proceeding.” (Id. at p. 21.) The court concluded that “the connotation that [the wrestling coach] committed perjury is sufficiently factual to be susceptible of being proved true or false.” (Ibid.)
We reach a similar conclusion in the present case. The statements in the August 17, 2007 SaigonUSA article, “[Tron] has raised money and brought it to the Viet Cong, instead of using it to treat eyes for the poor in Vietnam, the Viet Cong used the money in propaganda to win praise of the Cambodian, ” and “[Tron] most recently attended a reception to entertain Vietnamese Communist President Triet Minh Nguyen!” are “sufficiently factual to be susceptible of being proved true or false.” (Milkovich, supra, 497 U.S. at p. 21.) Therefore, we determine as a matter of law that the statements are actionable as provably false assertions of fact (Franklin, supra, 116 Cal.App.4th at p. 385) and do not constitute protected opinion.
D. Tam’s Retraction
The trial court ruled as follows regarding Tam’s retraction of his August 17, 2007 SaigonUSA article about Tron: “While Mr. Tam attempted to print a retraction, he printed the headline and details in the English language. SaigonUSA is a Vietnamese language newspaper and the original libelous article was printed in the Vietnamese language. Below the English ‘retraction’ the original article was reprinted in the Vietnamese language. A further attempt at a retraction was then printed in the Vietnamese language, however, the title was not enlarged as was the English title and incorrectly stated that the retraction was pursuant to ‘CC 46.a’ and not Civil Code section 48a. Accordingly, the Court finds that the retraction was insufficient because it was not published in substantially as conspicuous a manner as was the libelous article and the Vietnamese version of the retraction referenced a nonexistent code section.”
Tam argues that the photocopies of his August 17, 2007 SaigonUSA article and subsequent retraction, which were included in the record on appeal in the clerk’s transcript, show that the trial court erred in finding that his retraction was insufficient under section 48a because it was not “published in substantially as conspicuous a manner as was the libelous article.” Tran asserts that “the retraction, as published, was the most ‘conspicuous’ that any publisher could make, and no reader could miss it.”
In his respondent’s brief, Tron asserts that the retraction was insufficient because it was printed in English and not in Vietnamese. While Tam does not dispute this assertion, we note that the trial court found that the retraction was printed in both English and Vietnamese, although the Vietnamese version included an incorrect Civil Code reference.
We deny Tam’s request that Tron’s respondent’s brief be struck because it was filed one day late under the 30-day time limit for filing a respondent’s brief. (Cal. Rules of Court, rule 8.212(a)(3).)
We will evaluate Tam’s contentions under the well established rules governing the sufficiency of a retraction. “Under California law, a newspaper gains immunity from liability for all but ‘special damages’ when it prints a retraction satisfying the requirements of section 48a.” (Pierce v. San Jose Mercury News (1989) 214 Cal.App.3d 1626, 1631; Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1373.) Section 48a expressly provides that “[t]o be sufficient for this purpose, the retraction must appear ‘in substantially as conspicuous a manner in said newspaper... as were the statements claimed to be libelous.’ ([§] 48a)” (Twin Coast Newspapers, Inc. v. Superior Court (1989) 208 Cal.App.3d 656, 658, fn. omitted.)
Section 48a provides in part, “1. In any action for damages for the publication of a libel in a newspaper, or of a slander by radio broadcast, plaintiff shall recover no more than special damages unless a correction be demanded and be not published or broadcast, as hereinafter provided. Plaintiff shall serve upon the publisher, at the place of publication or broadcaster at the place of broadcast, a written notice specifying the statements claimed to be libelous and demanding that the same be corrected. Said notice and demand must be served within 20 days after knowledge of the publication or broadcast of the statements claimed to be libelous. [¶] 2. If a correction be demanded within said period and be not published or broadcast in substantially as conspicuous a manner in said newspaper or on said broadcasting station as were the statements claimed to be libelous, in a regular issue thereof published or broadcast within three weeks after such service, plaintiff, if he pleads and proves such notice, demand and failure to correct, and if his cause of action be maintained, may recover general, special and exemplary damages; provided that no exemplary damages may be recovered unless the plaintiff shall prove that defendant made the publication or broadcast with actual malice and then only in the discretion of the court or jury, and actual malice shall not be inferred or presumed from the publication or broadcast. [¶] 3. A correction published or broadcast in substantially as conspicuous a manner in said newspaper or on said broadcasting station as the statements claimed in the complaint to be libelous, prior to receipt of a demand therefor, shall be of the same force and effect as though such correction had been published or broadcast within three weeks after a demand therefor.”
However, even if the retraction is published “in ‘substantially as conspicuous a manner’ ” as the allegedly libelous article, “[a]n equivocal or incomplete retraction obviously serves no purpose....” (Weller v. American Broadcasting Companies, Inc. (1991) 232 Cal.App.3d 991, 1010-1011.) This common law principle was recognized in Turner v. Hearst (1896) 115 Cal. 394, where the California Supreme Court held that a retraction is insufficient to mitigate damages in a libel case unless “it should appear that it was fully, fairly, and promptly made, and is such as an impartial person would consider reasonable and satisfactory under the circumstances of the case.” (Id. at p. 404.)
Neither party has mentioned the standard of review that this court must apply in evaluating Tam’s contention that his retraction of the August 17, 2007 SaigonUSA article was sufficient under section 48a. We determine that the applicable standard of review is substantial evidence, since whether the attempted retraction was sufficient is a question of fact. (Turner v. Hearst, supra, 115 Cal. at p. 403; Twin Coast Newspapers, Inc. v. Superior Court, supra, 208 Cal.App.3d at p. 660.) “ ‘Questions of fact concern the establishment of historical or physical facts; their resolution is reviewed under the substantial-evidence test.’ ” (Haworth v. Superior Court, supra, 50 Cal.4th at p. 384.)
Having examined the photocopies of the August 17, 2007 SaigonUSA article and the retraction that were included in the clerk’s transcript, we determine that substantial evidence supports the trial court’s finding that Tam’s attempt to retract the article was insufficient under section 48a because the retraction was not published in substantially as conspicuous manner as the original article. The English headline for the attempted retraction, “RETRACTION PURSUANT TO CC 48.a, ” was printed in a much larger and more conspicuous typeface than the original article’s Vietnamese language headline. Moreover, since SaigonUSA is a Vietnamese language newspaper, the larger English language headline for the attempted retraction cannot be considered to be “reasonable and satisfactory under the circumstances of the case.” (Turner v. Hearst, supra, 115 Cal. at p. 404.)
We also determine that substantial evidence supports the trial court’s finding that the Vietnamese version of Tam’s attempted retraction incorrectly referred to a nonexistent code section, “46.a, ” which rendered the retraction equivocal or incomplete. (Weller v. American Broadcasting Companies, Inc., supra, 232 Cal.App.3d at p. 1011.) The attempted retraction was also equivocal or incomplete because it referred to Tron by his “real name, ” Tron Dinh Do, rather than Tron’s pen name, Tron Van Do, which had been used to identify Tron in the August 17, 2007 SaigonUSA article.
We further determine that the attempted retraction was insufficient because it did not actually retract the August 17, 2007 SaigonUSA article. A “retraction” is defined as “[t]he action of withdrawing a statement, accusation, etc., which is now admitted to be erroneous or unjustified....” (Oxford English Dict. Online (2d ed.1989) [as of May 3, 2011]; Wasatch Property Management v. Degrate (2005) 35 Cal.4th 1111, 1121-1122 [courts appropriately refer to the dictionary definition to determine the ordinary meaning of a word in a statute].) Here, the attempted retraction begins in English, “Dear Readers [¶] Pursuant to California Code Section 48.a, SaigonUSA News hereby publishes this retraction at the request of Mr. Tron Din Do as follows:” This language is followed by a reprint of the original article in Vietnamese, then by the Vietnamese language version of the attempted retraction. There is no language in the attempted retraction indicating that SaigonUSA is withdrawing the statements about Tron in the August 17, 2007 article or admitting that the statements were erroneous or unjustified.
For these reasons, we conclude that substantial evidence supports the trial court’s ruling that Tam’s retraction was insufficient under section 48a and therefore the court was not precluded from awarding general or punitive damages on Tron’s cross-complaint.
E. Award of General and Punitive Damages
Tam challenges the trial court’s award of general damages and punitive damages on Tron’s cross-complaint as excessive. We will discuss each type of damages separately.
1. General Damages
The trial court ruled as follows regarding Tron’s claim for general damages on the cross-complaint: “Mr. Tron claims that his reputation was harmed in the community by the false allegations that he misappropriated donated funds. He claims that he has abandoned his charitable endeavors due to Mr. Tam’s endless unsubstantiated claims that Mr. Tron has inappropriately used the donated funds for communist activities. In addition, he claims that he is afraid for his safety due to Mr. Tam’s endless allegations that Mr. Tron is a turncoat and communist sympathizer. [¶] By the mere fact that Mr. Tron could encourage and engage ten to twenty thousand people to attend his benefits concerts and donate substantial amounts of money to those in need, on its face, demonstrates that Mr. Tron enjoyed a good reputation within the Vietnamese community. There is no doubt that accusations of misappropriating the donated funds would tarnish his reputation. Also, all parties agree that being called a communist or being aligned with the communist in Vietnam is unacceptable to the Vietnamese community and is cause to be shunned by the community. Accordingly, the Court finds that an award of general damages to Mr. Tron in the amount of $10,000 is proper, just and reasonable.”
We understand Tam to argue that the $10,000 award of general damages is excessive because the trial court failed to consider several mitigating factors, including Tam’s claims that Tron’s reputation was previously damaged; the false charges were already in circulation at the time of the August 17, 2007 SaigonUSA article; Tron had the ability to rebut the charges in his media outlets; and SaigonUSA retracted the August 17, 2007 article.
According to Tron, the trial court properly awarded general damages of $10,000 because he testified that the accusations made in the August 17, 2007 SaigonUSA article damaged his reputation in the community for charitable giving, which has stopped him from doing further charity work.
As we have previously stated, where, as here, the defamatory language constitutes libel per se because it is defamatory on its face, “damage to plaintiff’s reputation is conclusively presumed and he [or she] need not introduce any evidence of actual damages in order to obtain or sustain an award of damages. [Citations.]” (Contento v. Mitchell, supra, 28 Cal.App.3d at p. 358.) The appellate court reviews a claim of excessive damages under the standard set forth in Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 506-507 (Seffert)).
In Seffert, the California Supreme Court instructed that “[t]he amount of damages is a fact question, first committed to the discretion of the jury and next to the discretion of the trial judge on a motion for new trial. They see and hear the witnesses and frequently, as in this case, see the injury and the impairment that has resulted therefrom. As a result, all presumptions are in favor of the decision of the trial court [citation]. The power of the appellate court differs materially from that of the trial court in passing on this question. An appellate court can interfere on the ground that the judgment is excessive only on the ground that the verdict is so large that, at first blush, it shocks the conscience and suggests passion, prejudice or corruption on the part of the jury.” (Seffert, supra, 56 Cal.2d at pp. 506-507.)
Thus, in determining whether an award of damages is excessive, the reviewing court does not “reassess the credibility of witnesses or reweigh the evidence. To the contrary, we consider the evidence in the light most favorable to the judgment, accepting every reasonable inference and resolving all conflicts in its favor. [Citation.]” (Westphal v. Wal-Mart Stores, Inc. (1998) 68 Cal.App.4th 1071, 1078.)
We are not convinced by Tam’s cursory argument that the $10,000 award of general damages was excessive because the evidence of harm to Tron’s reputation was insufficient. When challenging the sufficiency of the evidence, the appellant is required to provide a summary of all of the evidence, not merely his or her own evidence, with citations to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C); Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) In other words, we presume that the record contains sufficient evidence to support the trial court’s finding, unless the appellant affirmatively demonstrates that the evidence is insufficient. (Baxter Healthcare Corp. v. Denton (2004) 120 Cal.App.4th 333, 368.) Here, Tam’s arguments regarding the evidence of Tron’s reputation fail to summarize all of the relevant evidence or include any citations to the record. Tam also fails to affirmatively demonstrate that the evidence supporting the trial court’s award is insufficient.
We therefore presume that the evidence was sufficient to support the trial court’s award of $10,000 in general damages for the presumed harm to Tron’s reputation. Moreover, Tam’s conclusory argument that the damages award is excessive does not convince us that the $10,000 award “shocks the conscience and suggests passion, prejudice or corruption” on the part of the trial court. (Seffert, supra, 56 Cal.2d at pp. 506-507.)
2. Punitive Damages
In awarding $50,000 in punitive damages, the trial court ruled as follows: “[T]he Court finds that Mr. Tam’s main motivation for publishing the article was to cast doubt upon Mr. Tron as a means of keeping the Vietnamese community from accepting Mr. Tron or his good deed.... [M]r. Tam had no basis to believe that Mr. Tron gave any money to the Vietnamese communist government or that Mr. Tron approved of the Vietnamese government using him in its propaganda. Moreover, Mr. Tam had a long history of denouncing Mr. [Tron] as a communist and alleging that he misappropriated donated funds. These allegations have never been proved and Mr. Tron has presented sufficient evidence for the Court to conclude that the statements are false. Also, Mr. Tam previously accused Mr. Tron of criminal activities in a written article that was found to be libelous and for which legal judgment against Mr. Tam was entered. Yet, Mr. Tam continues in his efforts to defame Mr. Tron and, at the time of trial, had at least two other lawsuits pending against Mr. Tron. Mr. Tam has clearly demonstrated hatred and ill will towards Mr. Tron. Moreover, the Court finds that Mr. Tam never had a good faith belief in the truth of the libelous publications. Accordingly, for the sake of example and by way of punishing Mr. Tam for his display of actual malice, the Court shall award Mr. Tron $50,000 in exemplary damages.”
Tam contends that the award of punitive damages is excessive, violates due process, and does not comply with section 3294, the statute governing awards of punitive damages in tort cases. Section 3294, subdivision (a) provides, “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” Without addressing the trial court’s findings or providing any citations to the record, Tam claims that there was no evidence of fraud, oppression or malice. He also claims that the punitive damages award must be reversed because Tron did not provide any evidence of Tam’s financial condition.
Tron points out that the trial court held a hearing on punitive damages on January 22, 2010, and asserts that Tam’s own testimony at the hearing regarding his financial condition was sufficient evidence of his ability to pay the $50,000 award of punitive damages. Tron also asserts that the trial court appropriately awarded punitive damages to deter Tam from bringing further false accusations against him.
The California Supreme Court set forth the due process constraints on awards of punitive damages in Roby v. McKesson Corp. (2009) 47 Cal.4th 686 (Roby). “The due process clause of the Fourteenth Amendment to the United States Constitution places constraints on state court awards of punitive damages. [Citations.] We recently explained the basis of these constraints: ‘The imposition of “grossly excessive or arbitrary” awards is constitutionally prohibited, for due process entitles a tortfeasor to “ ‘fair notice not only of the conduct that will subject him [or her] to punishment, but also of the severity of the penalty that a State may impose.’ ” [Citation.]’ ” (Roby, supra, 47 Cal.4th at p. 712.)
The Roby court also applied the United States Supreme Court’s decision in State Farm Mut. Auto. Ins. Co. v. Campbell (2003) 538 U.S. 408 (State Farm). “In State Farm, the high court articulated ‘three guideposts’ for courts reviewing punitive damages: ‘(1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.’ [Citations.]” (Roby, supra, 47 Cal.4th at p. 712.)
The appellate court independently reviews a claim that an award of punitive damages is constitutionally excessive under State Farm. (Simon v. Sao Paolo U.S. Holding Co. (2005) 35 Cal.4th 1159, 1172.) However, “findings of historical fact made in the trial court are still entitled to the ordinary measure of appellate deference.” (Ibid.)
The state law standard for reviewing an award of punitive damages is different than the constitutional due process standard. “Because the quintessence of punitive damages is to deter future misconduct by the defendant, the key question before the reviewing court is whether the amount of damages ‘exceeds the level necessary to properly punish and deter.’ [Citations.]” (Adams v. Murakami (1991) 54 Cal.3d 105, 110 (Adams).) “The question cannot be answered in the abstract. The reviewing court must consider the amount of the award in the light of the relevant facts.” (Ibid.) Further, “[a] reviewing court cannot make a fully informed determination of whether an award of punitive damages is excessive unless the record contains evidence of the defendant’s financial condition.” (Ibid.)
The Adams court emphasized that an award of punitive damages “can be so disproportionate to the defendant’s ability to pay that the award is excessive for that reason alone.” (Adams, supra, 54 Cal.3d at p. 111.) Therefore, absent evidence of a defendant’s financial condition, “a reviewing court cannot make an informed decision whether the amount of punitive damages is excessive as a matter of law.” (Id. at p. 118.) Where the plaintiff has presented no evidence of the defendant’s financial condition, an award of punitive damages, “whatever its amount, cannot be sustained....” (Id. at p. 119.) “Thus, there should be some evidence of the defendant’s actual wealth. Normally evidence of liabilities should accompany evidence of assets, and evidence of expenses should accompany evidence of income.” (Baxter v. Peterson (2007) 150 Cal.App.4th 673, 680.) The plaintiff has the burden of proof with respect to defendant’s financial condition. (Adams, supra, 54 Cal.3d at p. 123.)
We will therefore begin our evaluation of Tam’s challenge to the punitive damages award by examining the record. We find that the only evidence regarding Tam’s financial condition was elicited during his testimony at the January 22, 2010 hearing on punitive damages. Tam testified that he is a practicing attorney with a 2008 gross income of $92,276 and 2008 net income of $29,072. As the owner of SaigonUSA, Tam loses approximately $20,000 per year. He also owes employees and vendors a total of approximately $34,000. While Tam and his wife, Cheryl Nguyen, purchased a piece of land for $150,000 in 2002, the property was transferred to creditors in 2007 to resolve a lawsuit. Tam also used to own a home in San Jose, but he subsequently transferred ownership to his wife “in exchange for all the money [he] lost over the years.” He currently pays “whatever [he] can” on the mortgage. Tam has one car, a 2004 Porsche Cayenne, on which he has completed payment of the car loan. His wife paid for his recent trip to Vietnam.
We find that Tron failed to present meaningful evidence of Tam’s ability to pay the punitive damages award because there is no evidence of Tam’s “actual wealth.” (Baxter v. Peterson, supra, 150 Cal.App.4th at p. 680.) The evidence presented at the January 22, 2010 hearing showed only that Tam had a net income of $29,072 in 2008, no assets other than a 2004 Porsche Cayenne, and liabilities consisting of $34,000 owed to vendors and employees of SaigonUSA and a annual loss of $20,000 in operating SaigonUSA. No evidence was presented with regard to Tam’s income in years other than 2008, or as to the existence of any bank accounts, retirement accounts, or investments. Thus, the evidence showed only that Tam’s current liabilities exceeded his 2008 income and he has no assets other than a 2004 Porsche Cayenne of unknown value. We also observe that the trial court did not state any findings regarding Tam’s financial condition in its statement of decision, although the court reduced the tentative award of punitive damages of $100,000 to $50,000 after the hearing on punitive damages.
Since the record does not include an adequate showing as to Tram’s financial condition, we are unable to make an informed decision as to whether the punitive damages award is disproportionate to Tam’s ability to pay and is therefore excessive as a matter of law. (Adams, supra, 54 Cal.3d at p. 118.) For that reason, the award of punitive damages on the cross-complaint cannot be sustained and we will strike the award. (Id. at p. 119.) We will not remand the matter for a retrial of the claim for punitive damages because Tron “ ‘had a full and fair opportunity to present his case for punitive damages, and he does not contend otherwise.’ [Citation.]” (Baxter v. Peterson, supra, 150 Cal.App.4th at p. 681.) Having reached this conclusion, we need not address Tam’s claim that the punitive damages award is constitutionally excessive. (Roby, supra, 47 Cal.4th at p. 712.)
F. Tron’s Tien Viet News Paid Editorial
The trial court awarded Tam nothing on his complaint, in which he alleged that he had been defamed by 17 statements in Tron’s August 23, 2007 paid editorial in the Tien Viet News. After examining the totality of the circumstances, the trial court determined that the 17 statements constituted nonactionable opinions because the paid editorial was printed in the newspaper’s opinion page, Tron was responding to Tam’s numerous critical articles, and Tron used hyperbolic and inflammatory language “in an effort to persuade Mr. Tam to stop his attacks on Mr. Tron and others in the Vietnamese Community....” The court concluded that “as the article was an expression of Mr. Tron’s opinions, it is protected by the Constitution and did not defame Mr. Tam.”
Tam contends that the trial court erred because all 17 statements in Tron’s paid editorial constitute actionable false assertions of fact and demonstrate that Tron acted with actual malice when he wrote the editorial. Tron disagrees. In his view, some of the 17 statements were nonactionable opinions, some were true statements, and some were formed as questions to invite Tam’s response. Tron also denies that he acted with actual malice.
As we have discussed, “the question is not strictly whether the published statement is fact or opinion. Rather, the dispositive question is whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact. [Citations.]” (Franklin, supra, 116 Cal.App.4th at p. 385.) “The question whether challenged statements convey the requisite factual imputation is ordinarily a question of law for the court. [Citation.]” (Kahn v. Bower, supra, 232 Cal.App.3d at p. 1608.) However, “some statements are ambiguous and cannot be characterized as factual or nonfactual as a matter of law. ‘In these circumstances, it is for the jury to determine whether an ordinary reader would have understood the article as a factual assertion....’ [Citations.]” (Ibid.)
Having independently reviewed the 17 statements in Tron’s paid editorial, we find as a matter of law that a reasonable reader could not find that any of the following statements (in English translation) implies a provably false assertion of fact: “You used your newspaper Saigon USA to curse at her and defame her as a communist, and traitor.”; “Mr. Tu Trien Thanh is only a simpl[e] businessman. It’s not clear whether Mr. Tu did offend you in any way or he did not advertise on your newspaper then you defamed him.”; “Mr. Tam! How cruel you are when the Hung Ly family was languishing in prison but you viciously set out to destroy them.”; “Mr. Tam! Do you know that the elders hate you to their gut and bone?”; “This restaurant will respectfully welcome everyone including the homeless, except Tam Nguyen.”; “You even embraced my father and said that ‘you must be so proud to have such a good son like [Tron], and I would like to be a son to you.’ But you then turned around and curse at my father so badly.”; “Mr. Nhon Huu Do, chairman of the Special Forces Veterans and also a friend from the same Quang Nam province with you and you even once called him God-Father. But you also accused him of such and such a crime.”; “A close friend of him even said ‘God damn him! Even a prostitute all over the world still spare a little corner space. How dare he curse at the gold old Mr. Nhon.’ ”; “You even want to become a musician, but I am afraid that your ‘red music’ is not appropriate for everyone.”; “You humbled yourself and whimpered ‘Dear Sir, Yes Sir with Vietnamese Communist.’ ”; and “You would like very much to have your photograph be posted everywhere to score credit with the politburo.”
However, the characterization of each of the remaining statements in Tron’s paid editorial is more difficult: “Is it true that few months ago you went to Vietnam to take order from the Counter Intelligence Agency from Ha Noi to destroy ou[r] community?”; “This boy Tam may be suffering from sexual and psychological disorder?”; “Some senior officers has teased Du Phong ‘so you still work for the boy Tam the traitor?’ ”; “Mr. Tam! You went to Vietnam and made boastful announcements. It is true that you have been recommended by Dr. Dung, the current vice minister of counter-intelligence agency in Hanoi to work with the communist department of justice to make laws punishing the ‘reactionary Vietkieus’?”; “How many times Mr. Truong Thanh, the first Deputy of the Vietnamese Communist Embassy in New York came to your office and held meetings on how to fight the ‘Vietkieus’? The picture taken of you is so fresh.”; and “Someone else also asked me ‘Does Tam is part [sic] of the Hanoi Counter Intelligence agency? If so, he must know the name of the secret police who muffle the mouth of Father Ly?’ ”
The trial court determined that “Mr. Tam’s translation was incorrect and that Mr. Tron did not accuse him of suffering from a sexual and psychological disorder.” We find that substantial evidence supports the trial court’s finding.
To determine whether the above statements (other than the statement that Tam may be suffering from a sexual and psychological disorder, which we will disregard) are actionable, we turn to well established principles of defamation law. The California Supreme Court has instructed that the distinction between an actionable statement of fact and nonactionable opinion “frequently is a difficult one, and what constitutes a statement of fact in one context may be treated as a statement of opinion in another, in light of the nature and content of the communication taken as a whole. Thus, where potentially defamatory statements are published in a public debate, a heated labor dispute, or in another setting in which the audience may anticipate efforts by the parties to persuade others to their positions by use of epithets, fiery rhetoric or hyperbole, language which generally might be considered as statements of fact may well assume the character of statements of opinion.” (Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, 601; see also Fletcher, supra, 216 Cal.App.3d at p. 191.)
Thus, it has been held that “[c]aricature, imaginative expression, and rhetorical hyperbole... are often subject to the threat of a defamation action, but generally constitute a legitimate exercise of literary style. [Citations.]” (Ferlauto v. Hamsher (1999) 74 Cal.App.4th 1394, 1403.) Similarly, comments that are “ ‘name-calling of the “sticks and stones will break my bones” variety’ ” are not actionable as a matter of law. [Citation.]” (Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 810.) A statement may also be too vague to be actionable. (Franklin, supra, 116 Cal.App.4th at p. 390.)
Having reviewed the entire record on appeal, we agree with the trial court that statements in Tron’s paid editorial that might, at first glance, appear to constitute provably false assertions of fact are not actionable when considered in context. The evidence shows that Tam and Tron have been engaged for some time in a heated personal and public dispute regarding the Vietnamese-American community’s relationship with the government of Vietnam. Their public dispute is demonstrated by the parties’ exchange in Tam’s August 17, 2007 SaigonUSA article and Tron’s August 23, 2007 paid editorial. We believe that in this adversarial setting, the readers of the Tien Viet News would have anticipated efforts by Tron to persuade readers to his position in the parties’ dispute by responding to Tam’s SaigonUSA article with “epithets, fiery rhetoric or hyperbole.” (Gregory v. McDonnell Douglas Corp., supra, 17 Cal.3d at p. 601.) Therefore, we determine that the above statements in Tron’s paid editorial, which might be otherwise be considered to be a statements of fact, would be understood by that particular audience as Tron’s opinion rather than as statements of fact. (Ibid.)
For these reasons, we conclude that the trial court did not err in finding that the 17 allegedly defamatory statements in Tron’s August 23, 2007 paid editorial in the Tien Viet News constitute nonactionable opinion and awarding Tam nothing on his complaint.
IV. DISPOSITION
The award of punitive damages in the June 17, 2010 judgment is stricken. As so modified, the judgment is affirmed. The parties are to bear their costs on appeal.
WE CONCUR: MIHARA, J., DUFFY, J.