Appeal from the 152nd District Court Harris County, Texas
Trial Court Case No. 2018-55787
consists of Justices Lloyd, Goodman, and Landau.
Beth Landau, Justice.
Dangelas is a businesswoman living in Houston. She is
originally from Vietnam but moved to Houston as an adult.
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.
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.
three issues, Bui and Nguyen contend the trial court erred in
denying their motions. We affirm.
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.
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." 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.
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."
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
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. After the accusation, Nguyen posted the
young child's name, and Bui published the Dangelas home
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."
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.
Citizens Participation Act
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.
TCPA's dismissal provision and relevant statutory
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").
TCPA's shifting burdens
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.
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). 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).
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).
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).