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Bui v. Dangelas

Court of Appeals of Texas, First District

October 15, 2019


          On Appeal from the 152nd District Court Harris County, Texas Trial Court Case No. 2018-55787

          Panel consists of Justices Lloyd, Goodman, and Landau.


          Sarah Beth Landau, Justice.

         Maya Dangelas is a businesswoman living in Houston. She is originally from Vietnam but moved to Houston as an adult.

         Thang Bui and Monique Nguyen are members of the Vietnamese-American community in Houston. Bui and Nguyen authored posts on Facebook about Dangelas. They alleged she was a member of the Viet Cong and a part of a secret Viet Cong plot to bribe locals. They also posted pictures of Dangelas and her immediate family and disclosed her home address. Even after the posts elicited calls to harm Dangelas and her family, Bui and Nguyen added more accusatory posts. Dangelas asked that the posts be removed and, when they were not, Dangelas sued Bui and Nguyen for defamation.

         Bui and Nguyen moved for dismissal of Dangelas's suit under the Texas Citizens Participation Act. See Tex. Civ. Prac. & Rem. Code §§ 27.001-.011. The trial court denied their motions, and they have appealed.

         In three issues, Bui and Nguyen contend the trial court erred in denying their motions. We affirm.


         Thang Bui and Monique Nguyen live in the Houston area. Neither has met Maya Dangelas, but both have read about her on the internet, including about parties she has hosted, donations she has made to various charities, and business ventures she has managed. Bui and Nguyen came to the conclusion that Dangelas is a communist with loyalties to the communist Vietnamese government. They announced their conclusions to the Vietnamese community through posts added to their own Facebook pages and to a community Facebook page called "Dan Saigon Zui" with over 90, 000 members who are in Houston, other American cities, and Vietnam. Their posts were in Vietnamese and occasionally in English.

         In their Facebook posts, Bui and Nguyen declared that Dangelas is "one of the main heads" of a Viet Cong group that acts "to purposely bribe the anti-communists" in the Houston area for the benefit of the Viet Cong, thus making her "the Viet Cong bitch in Houston."[1] Bui made a specific factual allegation in one of his posts that "since 2012," Dangelas has lived in Houston and "received assistance from the Viet Cong Embassy to gradually transfer 1 billion U.S. Dollars to the United States to carry out" a conspiracy to benefit the Viet Cong and communism.

         Nguyen wrote that Dangelas is "a local Communist" who uses Vietnamese money to "perform her duties as a member of the communist party." In an exchange on Facebook, a person who is not a party to this litigation urged Nguyen to "catch" Dangelas and "slaughter her." Nguyen responded, "I give you the opportunity to slaughter her," to which the person lamented that it could not be done from their location in Vietnam. Then, the person offered that Nguyen should "bully" Dangelas so she will leave the United States. Nguyen replied, "Doing it right now, dear."

         Other posters also responded, calling Dangelas a money launderer and accusing her of coming to the United States "to break up and divide the community" and calling on the Vietnamese-American community to act: "Destroy her."

         Even after engaging in these online conversations and seeing the anger and threats they evoked, Bui falsely wrote on Facebook that Dangelas's young daughter is the biological child of the communist former leader of Vietnam who local Vietnamese-Americans associate with their painful past in Vietnam and the struggles that led so many to become refugees.[2] After the accusation, Nguyen posted the young child's name, and Bui published the Dangelas home address.

         Bui's and Nguyen's posts received alarmed responses. There was a call for the Vietnamese community to "stand shoulder to shoulder" with Bui (whom the poster called "the first instigator" against Dangelas), "to kill her without leaving a trace," to "boycott her, lock her up" and to "hang her in the Vietnamese area(s) to set an example for other Viet Cong bitches," and to kill Dangelas's daughter, "a Communist offspring" who "must be disposed of."

         Dangelas was alarmed by the posts and feared for her own safety and that of her children. When Bui and Nguyen would not relent, she sued them for defamation because their posts were false, harmful to her reputation, and dangerous.

         Texas Citizens Participation Act

         Both Bui and Nguyen filed motions to dismiss Dangelas's defamation suit under the Texas Citizens Participation Act. See TEX. CIV. PRAC. & REM. CODE §§ 27.001-.011. The TCPA is found in Chapter 27 of the Civil Practice and Remedies Code, which is titled, “Actions Involving the Exercise of Certain Constitutional Rights.” The TCPA's purpose is to protect “citizens who petition or speak on matters of public concern from retaliatory lawsuits that seek to intimidate or silence them.” In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015). It does so by creating a “set of procedural mechanisms through which a litigant may require, by motion, a threshold testing of the merits of legal proceedings or filings that are deemed to implicate the expressive interests protected by the statute, with the remedies of expedited dismissal, cost-shifting, and sanctions for any found wanting.” Serafine v. Blunt, 466 S.W.3d 352, 369 (Tex. App.-Austin 2015, no pet.) (Pemberton, J., concurring); see Tex. Civ. Prac. & Rem. Code §§ 27.003- .005, .009.

         A. TCPA's dismissal provision and relevant statutory definitions

         Section 27.003 of the TCPA provides that a party may file a motion to dismiss a legal action that "is based on, relates to, or is in response to [that] party's exercise of" one of three rights: free speech, petition, or association. Tex. Civ. Prac. & Rem. Code § 27.003(a). The Legislature defined "[l]egal action" as "a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal or equitable relief." Id. § 27.001(6). The Legislature also statutorily defined the three sets of rights protected by TCPA summary-dismissal procedures. Id. § 27.001(2) (defining "exercise of the right of association" as "a communication between individuals who join together to collectively express, promote, pursue, or defend common interests"); § 27.001(3) (defining "exercise of the right of free speech" as "a communication made in connection with a matter of public concern"); § 27.001(4) (defining "exercise of the right to petition").

         B. TCPA's shifting burdens

         When a movant seeks dismissal under the TCPA, the movant has the initial burden to show by a preponderance of the evidence that the nonmovant has asserted a "legal action" that is based on, relates to, or is in response to the movant's exercise of one of the three rights delineated in the statute. Id. § 27.005(b). If the movant meets that burden, the burden shifts to the nonmovant.

         The nonmovant has the burden to establish by clear and specific evidence a "prima facie case for each essential element of the claim in question." Id. § 27.005(c).[3] This generally "requires only the minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true." In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004) (orig. proceeding) (internal quotation marks and citation omitted); see, e.g., Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71, 80 (Tex. App.-Houston [1st Dist.] 2013, pet. denied) (explaining that Legislature's use of "prima facie case" in Chapter 27 implies minimal factual burden). "Prima facie evidence is evidence that, until its effect is overcome by other evidence, will suffice as proof of a fact in issue. In other words, a prima facie case is one that will entitle a party to recover if no evidence to the contrary is offered by the opposite party." Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716, 726 (Tex. App.- Houston [14th Dist.] 2013, pet. denied) (citation omitted) (disapproved of on other grounds, In re Lipsky, 460 S.W.3d at 587-88); cf. Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008) (per curiam) (explaining that summary-judgment movant's presentation of prima facie evidence of deed's validity established right to summary judgment unless nonmovants presented evidence raising fact issue related to deed's validity).

         A nonmovant should be able to meet the clear and specific standard in a defamation case if her "pleadings and evidence" establish "the facts of when, where, and what was said, the defamatory nature of the statements, and how they damaged the plaintiff." In re Lipsky, 460 S.W.3d at 591. It generally suffices if a plaintiff provides "enough detail to show the factual basis for its claim." Id. This standard is higher than the notice-pleading standard, see Tex. R. Civ. P. 45, 47, but it does not require direct evidence; circumstantial evidence can suffice. In re Lipsky, 460 S.W.3d at 591. At the same time, though, "[c]onclusory statements are not probative and . . . will not suffice to establish a prima facie case." Better Bus. Bureau of Metro. Houston, Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 355 (Tex. App.-Houston [1st Dist.] 2013, pet. denied); see In re Lipsky, 460 S.W.3d at 592 (explaining that "bare, baseless opinions" are not "a sufficient substitute for the clear and specific evidence required to establish a prima facie case" under TCPA).

         The trial court considers the pleadings and any supporting and opposing affidavits to evaluate whether each party has met its burden. Tex. Civ. Prac. & Rem. Code § 27.006(a); In re Lipsky, 460 S.W.3d at 587. The trial court also "may allow specified and limited discovery relevant to the motion" to dismiss. Tex. Civ. Prac. & Rem. Code § 27.006(b); see In re SSCP Mgmt., Inc., 573 S.W.3d 464, 472-73 (Tex. App.-Fort Worth 2019, no pet.) (acknowledging that "some merits-based discovery" may be necessary for nonmovant to respond to TCPA dismissal motion). Thus, in addition to the pleadings and affidavits, "a trial court may, but is not required to, hear live testimony and receive the submission of documentary evidence" in determining whether to grant or deny a motion to dismiss. Batra v. Covenant Health Sys., 562 S.W.3d 696, 707 (Tex. App.-Amarillo 2018, pet. denied). A trial court considers the pleadings and evidence in the light most favorable to the nonmovant. Porter-Garcia v. Travis Law Firm, P.C., 564 S.W.3d 75, 84 (Tex. App.-Houston [1st Dist.] 2018, pet. denied).

         Standard ...

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