Court of Civil Appeals of Texas, 2015

Aloysius Hoang AKA Hoang Duy Hung v. Thinh Dat Nguyen, Individual Thoi Bao Houston and Thoi Bao

Court of Civil Appeals of Texas · Decided October 22, 2015

Opinion

ACCEPTED 14-14-00942-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 10/22/2015 11:07:03 PM CHRISTOPHER PRINE CLERK

14-14-00942-CV FILED IN ====================================================================================================== 14th COURT OF APPEALS HOUSTON, TEXAS IN THE FOURTEENTH COURT OF APPEALS 10/22/2015 11:07:03 PM HOUSTON, TEXAS CHRISTOPHER A. PRINE Clerk ========================================================== Aloysius Duy-Hung Hoang aka Hoang Duy Hung, Appellant vs. Thinh Dat Nguyen Thoi Bao Houston, Thoi Bao, Appellees -------------------------------------------------------------------------------- Appeal from the 215th Judicial District Court Houston Harris County, Texas --------------------------------------------------------------------------------- APPELLANT's AMENDED BRIEF ---------------------------------------------------------------------------------------------------- Aloysius Duy-Hung Hoang Pro se State Bar number 2400-2295 Congress St #350 Houston TX 77002 Tel. 281-788-8486 Fax 713-224-3111 Email: [email protected]

ORAL ARGUMENT IS NOT REQUESTED ******************************************************************************

IDENTITY OF PARTIES AND COUNSEL Appellant/Plaintiff Aloysius Duy-Hung Hoang aka Al Hoang aka Hoang Duy Hung Counsel for Appelant Al Hoang, pro se

Appellees/Defendants Thinh Dat Nguyen, an individual.

Thoi Bao Houston, a Vietnamese magazine published in Houston.

Thoi Bao, a Vietnamese Magazine published in Canada and the United States of which Houston Thoi Bao is a part of the chain.

Counsel for Appellees Mark Bennettt SBN 0079-2970 Bennett & Bennett Franklin Street, Fourth Floor Houston TX 77002 Tel. 713-224-1747 Email: [email protected]

TABLE OF CONTENTS Page IDENTITY OF PARTIES AND COUNSEL ............................................. 2 INDEX OF AUTHORITIES ...................................................................... 4 STATEMENT OF THE CASE .................................................................. 5 ISSUES PRESENTED .............................................................................. 6 STATEMENT REGARDING ORAL ARGUMENT ............................... 7 STATEMENT OF FACTS ................................ ..................................... 8 SUMMARY OF ARGUMENT ............................................................... 12 ARGUMENTS ..................................................................................... 12 First issue ........................................................................... 12 Second issue ................................................................. 16 Third issue ........................................................................... 18 Fourth issue ................................................................. 20

CONCLUSION AND PRAYER ............................................................... 21 CERTIFICATE OF COMPLIANCE ......................................................... 22 CERTIFICATE OF SERVICE .................................................................. 22 APPENDIX 1. COURT'S RECORD [CR] 2. REPORTER'S RECORD [RR]

INDEX OF AUTHORITIES PAGE STATUTES: 1. Texas Citizens Participation Act (the "Texas Anti-SLAPP statute") Texas Civil Practice & Remedies Code, Chapter 27 ..................... 12 2. Texas Civil and Remedy Code, Sec. 154.073 (a) ......................... 21 CASES: Hearst Corp. vs. Skeen, 130 S.W. 3d 910 (Tex. App. 2004) ..... 13 Musser vs. Smith Protective Services Inc., 723 S.W. 2d 653, 655 (Tex. 1987) ...................... 12 Spanel et al. vs Pegler, 160 F (2d) 619, A.L.R. 699 (Fed. Ct., 1947) ..... 18

INDEX OF AUTHORITIES FOR REFERENCE Burrell vs. Moran et al, 82 N.E. (2d) 334 (Ohio, 1948) ...... 18 Hoai Thanh vs. Hien Thi Ngo and Vietnamese Public Radio Inc., CASE No: AW 05 CV 3420 ........... 19 Bui vs. Do, D-1-GN-09-001567 in Travis County ............. 20 Nguoi Viet News, Inc., vs. Saigon Nho Newspapers, 30-2012-00595526 in the Superior Court of Orange County, California 20

TO THE HONORABLES FOURTEENTH COURT OF APPEALS:

STATEMENT OF THE CASE Nature of the case This is an appeal from the Trial Court Motion To Dismiss brought by Appellees. On October 13, 2014, Appellant filed a Defamation lawsuit against Appellees. [CR. 4]. On October 21, 2014, Appellees filed the Answer and Motion To Dismiss. [CR. 15].

Trial Court 215th Judicial District Court of Harris County, TX.

Trial Court's disposition On November 18, 2014, the Trial Court Granted Defendants' Motion to Dismiss based on Texas Citizens Participation Act (the "Texas Anti- SLAPP statute"), Texas Civil Practice & Remedies Code, Chapter 27. [CR 323]

ISSUES PRESENTED I. Did the District Court err in holding that Defendants are entitled to dismissal under the Texas Citizens Participation Act (the "Texas Anti- SLAPP statute"), Texas Civil Practice & Remedies Code, Chapter 27 when there are sufficient elements to show Defendants fabricated facts to libel Plaintiff?

II. Did the District Court err when not considering Plaintiff's affidavit in the Original Petition as prima facie facts to establish elements of a Defamation case?

III. Did the District Court err when considering the label of someone as a "Communist," "Spy for the Communist," or "Communist Sympathizer" in an anti-Communist community like the Vietnamese Community as "may be wrongheaded, but is not illegal or disgraceful?"

IV. Did the District Court err when considering previous lawsuits filed by Plaintiff to various individuals in the last 10 years and later on through mediations dismissed them as a basis for dismissal in this case?

STATEMENT REGARDING ORAL ARGUMENT Appellant/Plaintiff does not request an oral argument.

STATEMENT OF FACTS

"CR" means the Court's Record on Appeal.

"RR" means the Reporter's Record.

Appellee Thinh Dat Nguyen is a Texas resident. Thoi Bao Magazine is a Vietnamese weekly magazine which has branches in Canada and in the United States. Thoi Bao Houston Magazine is its branch in Houston. Nguyen is the Editor-in-chief of Thoi Bao Houston and Thoi Bao in Texas. [CR 5].

In 2010, after Hoang was elected as Houston District F City Councilmember, Hoang was invited to Nguyen's house for dinner. During dinner, Hoang disclosed that Hoang was invited by Houston Airport System Director Mario Diaz to accompany him to Vietnam. Nguyen then ordered Hoang: "I order you not to go to Vietnam. If you go, I will mobilize Thoi Bao to destroy you, to take your council seat away." An argument broke out between Hoang and Nguyen, Hoang left the house. After this event, almost in every issue of Thoi Bao, Nguyen labeled Hoang as a Vietnamese Communist, an agent of the Vietnamese Communist, or a spy of the Vietnamese Communist. [CR.6] Sometime in October, 2012, Vice Minister of Vietnam, Mr. Nguyen Thanh Son, visited Houston. Mayor Anise Parker and her Administration, with Hoang, welcomed the Delegation. A Forum was opened for Vietnamese freedom fighters to come and make pressure on Vietnam to honor human rights as well as open up the door for multi-party system. Nguyen twisted the facts to label Hoang as Vietnamese Communist Spy or an arm of the Vietnamese Communist to "sabotage the Vietnamese Community in Houston and abroad." Nguyen did not libel Anise Parker and her Administration as Communists. Because of such libel, many Vietnamese people, especially the seniors who do not read English and read only Vietnamese, believe that Hoang is a Communist, and they organized protests in front of Hoang's residence and a cocktail bomb threat was put in front of Hoang's house. [CR 7].

In early 2013, on behalf of the City of Houston, Hoang made a tour to Asia countries such as Japan, Taiwan, Indonesia, and Vietnam to enhance the business relationship of those countries with Houston and the Port of Houston. Nguyen ignored the trips to Indonesia, Taiwan, and Japan to concentrate only on the trip to Vietnam to libel Hoang as Vietnamese Communist working for the Vietnamese Communist government. [CR 7].

Hoang publicly announced numerous times that he would welcome for an open interview or debate. Nguyen and his group ignored. [CR 8 and RR 9 lines 22 - 25] Hoang won the Republican primary in 2014 to run for State Representative District 149. Nguyen had articles to support the Democratic candidate Hubert Vo.

Again, almost every issue, Nguyen libeled Hoang as a Vietnamese Communist. [CR 7].

In issue 412 of early October, 2014, Nguyen ran the headline "NOT VOTING FOR HOANG DUY HUNG" whereby he also turned the facts so that the readers understand that because Hoang is a Communist, Hoang's father in 2007 committed suicide by jumping into the moving truck. In fact, Hoang's father died because of an undocumented immigrant who ran the red light and hit Hoang's father, he was taken to Ben Taub and died. [CR. 8].

In issue 413, midst of October, 2014, a week before the early voting of the General Election, Nguyen ran the headline "UNMASK THE SPY FACE OF HOANG DUY HUNG" whereby Nguyen published at least three false statements about Hoang. Nguyen published statements affirming that Hoang is "a Communist," "an insider working for the Vietnamese Communist regime," "planned a scheme to put a death threat bomb killing him and his family members at his house and then called the police to blame on Vietnamese Nationalist activists, afterward he took the pictures to take credit with the Vietnamese Communists," and "his father was so shameful of the betrayal son whereby he committed suicide by jumping himself to the oncoming 18-wheeler." [CR. 8 and Affidavit CR 12].

After Plaintiff filed the Answer to Defendant's Motion to Dismiss, on November 10, 2014, Nguyen published a statement on the Vietnamese e-forums as follows: "I was sued for calling a communist a communist." Then he asked supporters to come to Court to "witness the fighting spirit against the Communist of the Vietnamese People Abroad, the victims of the Communist." [CR. 123. RR 2 line 11-13].

SUMMARY OF THE ARGUMENT

The trial Court erred in dismissing the case in ruling that "the legal action was brought to deter or prevent the Defendants from exercising Constitutional rights and was brought for an improper purpose, including to harass or to cause unnecessary delay or to increase the cost of litigation." [CR 323]. Constitutional rights are the rights to opine, but not the rights to fabricate facts libeling other person, and this is not protected either by the Constitution or by Texas Anti-Slapp Statute.

ARGUMENT

I. Did the District Court err in holding that Defendants are entitled to dismissal under the Texas Citizens Participation Act (the "Texas Anti-SLAPP statute"), Texas Civil Practice & Remedies Code, Chapter 27 when there are sufficient elements to show Defendants fabricated facts to libel Plaintiff?

Does TCPR Chapter 27 applied to an Editor-in-chief of a magazine who almost every issue labels Plaintiff a Communist flaring hatred within an Anti- Communist Community against Plaintiff? The Legislature intent when passing this Statute was to protect an individual to speak out the opinion on public issue by writing to the Editor of a newspaper, testifying before the Legislature, reporting official misconduct, circulating a Petition, or posting a comment on the internet. It is quite ambiguous on the Legislature intent whether it should be applied to an Editor-in-chief of a magazine in this matter.

If TCPR Chapter 27 applied to Nguyen, then whether Nguyen is protected under the Statute when Hoang can prove on prima facie the elements of Defamation?

The elements of Defamation are: 1. Defendant published a statement; 2. that was defamatory concerning the Plaintiff; 3. while acting with either actual malice, if the Plaintiff was a public figure, or negligence, if the Plaintiff was a private individual, regarding the truth of the statement. Hearst Corp. vs. Skeen, 130 S.W. 3d 910 (Tex. App. 2004), review granted, judgment rev'd., 159 S.W. 3d 633 (Tex. 2005). In Musser vs. Smith Protective Services Inc., 723 S.W. 2d 653, 655 (Tex. 1987), the Court stated that "to prove an action for defamation, the statement must also be false." 1. Statement of facts published by Defendants concerning Plaintiff: In this case, Nguyen published at least three false statements about Hoang. Nguyen published statements affirming that Hoang is "a Communist," "an insider working for the Vietnamese Communist regime," "planned a scheme to put a death threat

bomb killing him and his family members at his house and then called the police to blame on Vietnamese Nationalist activists, afterward he took the pictures to take credit with the Vietnamese Communists," and "his father was so shameful of the betrayal son whereby he committed suicide by jumping himself to the oncoming 18-wheeler." [CR 121]. Defendant never stated that it was his opinion, but he stated them as facts in the affirmative tone.

2. The statements are false and defamatory: Hoang came to the United States in 1975 when Plaintiff was 13. After graduating from the University of Houston, in 1990, Hoang came back to Vietnam to fight against the Communist and Hoang was imprisoned by the Vietnamese Communist for 16 months in solitary confinement. In 1993, in order to have the normalization with the United States, Vietnamese Communist had to release all U.S citizens of which Hoang was one of them. In November 2007, Hoang was elected as President of the Vietnamese Community of Houston & Vicinities. In 2009, Hoang was elected as Houston District F City Councilmember. [CR 115].

After September 11, 2001, Hoang changed the strategy in fighting against the Communist. Hoang sees that there is no way to use force to overthrow the Communist regime; therefore, Hoang promote "open dialogue" to make pressure on Vietnam to honor human rights and to have political change. [CR 116].

In the capacity as the City elected official, together with the Mayor, Hoang welcomed a Delegation from Vietnam, opened up a Forum for Vietnamese Freedom Fighters to pressure on Vietnam for political changes and honoring human rights [CR 7]. In early 2013, as a city elected official, Hoang visited 4 Asian countries to promote economic growth for the City of Houston and Vietnam was one of the four countries. [CR. 7].

Labeling Hoang as a "Communist" or "insider working for the Communist regime" is not only an insult, but also a defamation flaring hatred within an anti- communist community against Hoang. Labeling Hoang to plan "a scheme to put a death threat bomb killing him and his family members at his house and then called the police to blame on Vietnamese Nationalist activists, afterward he took the pictures to take credit with the Vietnamese Communists" [CR 121] is a defamation turning a victim into the criminal mastermind. Making a false statement that "his father was so shameful of the betrayal son whereby he committed suicide by jumping himself to the oncoming 18-wheeler" [CR 121] is not only an insult to the decedent and to Hoang, but also a defamation discrediting Hoang in the public's eyes.

3. The statements are made with actual malice: Hoang has asked Nguyen for a public debate, [CR 8], and if Nguyen can show a better way of fighting the

Vietnamese Communist, Hoang would immediately "kneel down and carry Nguyen's shoes." [RR 9 lines 21-25].

In his Original Pleading, Hoang stated that Hoang has asked Nguyen "to stop the such libel, and if Nguyen has any question, Hoang is happy to entertain a public interview forum. Hoang also informed him that by FCC rules, Nguyen has to give Hoang equal space to correct the facts and Nguyen ignored." [CR 8].

Hoang also notified the owner in Toronto, Canada, by email [email protected] and left messages on the phone 416-624-7297 for him to take appropriate steps but there was no return. [CR 8].

There are fabrications of facts here, not opinions, published by the Nguyen that Hoang can show on prima facie the elements of Defamation. The Statute only requires the Plaintiff to prove on "preponderance of the evidence," not "beyond a reasonable doubt" and the Statute requires the elements of the evidence are to be in the Pleading and/or in the Affidavits. Hoang had it in his Original Pleading along with the Affidavit [CR 12].

II. Did the District Court err when not considering Plaintiff's affidavit in the Original Petition as prima facie facts to establish elements of a Defamation case?

In the Original Petition, Hoang also filed an affidavit stating that "all the statements of facts in Plaintiff's Original Petition is true and they are within my personal knowledge. Defendants Thinh Dat Nguyen, Thoi Bao Houston, and Thoi Bao Magazine published false statements of facts to libel Al Hoang as a spy of the Vietnamese Communist, Al Hoang is a Communist, Al Hoang is a Communist Sympathizer, or Al Hoang is working for the interest of the Vietnamese Communist Government. These false statements of facts are one of the factors leading to Al Hoang's lost of 2013 Election and it could be the same for 2014 Election." [CR 12].

In answering Nguyen's Motion To Dismiss, Hoang also filed a certified translation and the Affidavit of the translator as follows: "My name is Fawn D.

Nguyen. I am capable of making this affidavit. I am a certified translator from Vietnamese to English and from English to Vietnamese. My Texas License number is 930. The translation of Thoi Bao Magazine, issue 413, pages 36-37, the related statements of the lawsuit, was under my supervision and I hereby certify that the translation is true and correct from Vietnamese to English." [CR 121]

Nguyen, during the hearing of the Motion to Dismiss, claimed that there was no affidavit filed by Hoang to support the elements of a defamation case. Whether the Court took this into consideration to dismiss the case is unclear; yet, on the contrary, the affidavit was made and was properly submitted in the Original Petition. [CR 12].

At the hearing of Nguyen's Motion to Dismiss, Nguyen's attorney turned in the Brief. The Court should not take the Brief in consideration because it did not provide Hoang a fair chance to answer [RR 13 lines 8-14]. In the Brief, Nguyen stated "it may be wrongheaded, but is not illegal or disgraceful, to be a communist." [CR 13] Maybe it is not disgraceful to various persons to be a communist, but it is to Hoang.

Half a century ago, in the United States, to label a person as a Communist, is libel per se: "The fact that it may be legal to be a Communist or a Communist sympathizer does not prevent such a charge from being libelous per se, as a publication need not impute a crime to constitute a libel." Spanel et al. vs Pegler, F (2d) 619, A.L.R. 699 (Fed. Ct., 1947). The Court in Burrell vs. Moran et al, 82 N.E. (2d) 334 (Ohio, 1948), the Court also stated: ".. a large segment of our populace attaches to the activities of Communists an odorous interpretation that tends toward public aversion." After the Fall of Communism in Eastern Europe and in the Soviet Union in the late 1980's and early 1990's, that kind of sentiment may not be that deepened in the hearts of mainstream Americans, but it exists in minority communities such as Vietnamese Community who has recently fled from Communism and Vietnam is still under the yoke of Communist regime.

For the past 40 years, many folks who were misunderstood as "Communist" or "Communist sympathizer" in the Vietnamese Community were murdered or were threatened to death. In December 2012, after Hoang was labeled as a "Communist," there were couples of demonstration in front of Hoang's residence and immediately there was a death-threat cocktail bomb was placed at Hoang's door [CR 7].

In the Vietnamese Community, a person is to be labeled or to be misunderstood as a Communist, the livelihood of that person and family members are in jeopardy, that person could hardly advance further to higher status. Because Hoang was labeled and/or misunderstood as a Communist, Hoang lost the Election in 2013 to a no-name at that time, Richard Nguyen [CR 7] Understanding the situation to be labeled as a Communist in the Vietnamese Community, Courts all over the United States took the matter seriously and allowed cases to go to trial. In Virginia, Hoai Thanh vs. Hien Thi Ngo and Vietnamese Public Radio Inc., CASE No: AW 05 CV 3420, in the Federal District Court, on October 21, 2011, the case was tried, the Court awarded $1 million punitive damages to Plaintiff for being called as a "Communist." Likewise,

in Texas, after the Anti-Slapp Law was in effective, in the case of Bui vs. Do, D-1- GN-09-001567 in Travis County, on October 27, 2011, the Court granted 1.9 punitive damages in favor of Plaintiff because Defendant Michael Do labeled Plaintiff Nancy Bui as a Communist or a Communist sympathizer. In the case of Nguoi Viet News, Inc., vs. Saigon Nho Newspapers, 30-2012-00595526 in the Superior Court of Orange County, California, On December 30, 2014, a Jury of awarded the Plaintiffs $3,000,000 in damages and $1,500,000 in punitive against Defendants for labeling Plaintiffs as Communist agents or Communist sympathizers.

In the Motion to Dismiss, Nguyen asserted that Hoang in the last over 10 years, filed a couple of lawsuits and dismissed them. The facts and issues in those cases are different. Those cases went through mediation, Defendants either agreed to issue either an apology or Statements of Corrections, such as Defendant Free Vietnam Government issued the Letter of Correction [CR 36], Defendant Anh Tai

Nguyen issued the Letter of Apology [CR 50], and to promote harmony, in accordance to mediation rule, Hoang dismissed the cases. [RR p. 7]. Dismissing lawsuits in accordance to Mediation Procedure cannot be used as a ground for the Court dismissing this case. See Texas Civil and Remedy Code, Sec. 154.073 (a).

CONFIDENTIALITY OF CERTAIN RECORDS AND COMMUNICATIONS.: "Except as provided by Subsections (c), (d), (e), and (f), a communication relating to the subject matter of any civil or criminal dispute made by a participant in an alternative dispute resolution procedure, whether before or after the institution of formal judicial proceedings, is confidential, is not subject to disclosure, and may not be used as evidence against the participant in any judicial or administrative proceeding."

CONCLUSION AND PRAYERS

The Trial Court's decision in dismissing the case sent out a wrong message to the Community that Freedom of Speech also includes freedom to make up facts libeling people. WHEREFORE, as premises considered, Appellant Al Hoang respectfully requests the Court to reverse the Trial Court's decision, grant Appellant an opportunity to have a fair trial, grant appellant such other and further

relief, at law or in equity, to which Appellant may by this pleading or proper amendment thereto show himself justly entitled.

Respectfully submitted

_____________________________ Hoang & Associates Aloysius Duy-Hung Hoang State Bar No. 24002295 Congress St. #350 Houston, TX 77002 Telephone: 713/229-8900 Telecopier: 713/224-3111 pro se

CERTIFICATE OF COMPLIANCE I certify that the word count in this entire document is 3545

________________________________ Al Hoang CERTIFICATE OF SERVICE I, Al Hoang, hereby certify that a true and correct copy of the above and foregoing was served in accordance with the Texas Rules of Civil Procedure on all counsel of record by placing same in the United States mail, certified mail, return receipt requested, by hand delivery or by telecopier, on this the 22nd day of October, 2015.

_________________________________ Al Hoang APPENDIX 1 ORIGINAL CLERKS RECORD VOLUME I FILED IN 14th COURT OF APPEALS APPELLATE COURT NO. 14-14-00942-CV HOUSTON, TEXAS 2/3/2015 11:49:24 AM CHRISTOPHER A. PRINE ALYOSIUS HOANG AKA HOANG DUY HUNG Clerk APPELLANT(S) VS. TRIAL COURT NO. 2014-59665 THINH DAT NGUYEN INDIVIDUAL THOI BAO HOUSTON AND THOI BAO APPELLEE(S)

FROM THE 215TH District Court of Harris County, at Houston, Texas HON. ELAINE PALMER, JUDGE PRESIDING.

Applied for by ALOYSIUS DUY-HUNG HOAN on 24TH day of NOVEMBER A.D., 2014 and delivered to the “FOURTEENTH” COURT OF APPEALS A.D., 2014.

CHRIS DANIEL Harris County, District Clerk

By: /s/PHYLLIS WASHINGTON PHYLLIS WASHINGTON, Deputy Attorney for Appellant: ALOYSIUS DUY-HUNG HOAN HOANG & ASSOCIATES CONGRESS STE 350 HOUSTON, TX 77002 Attorney for Appellee: MARK WILLIAM BENNETT ATTY AT LAW FRANKLIN ST 4TH FLR HOUSTON, TX 77002

INDEX ALYOSIUS HOANG AKA HOANG DUY HUNG VS. NO. 2014-59665 #14-14-00942-CV THINH DAT NGUYEN INDIVIDUAL THOI BAO HOUSTON AND THOI BAO PAGE COVER PAGE VOLUME I............................................................................................................................ 1

INDEX ................................................................................................................................................................ 2 PLAINTIFFS’ ORIGINAL PETITION AND APPLICATION FOR TEMPORARY INJUNCTION ORDER FILED OCTOBER 13, 2014................................................................................................................ 4 AL HOANG’S AFFIDAVIT ........................................................................................................................... 12 MOTION TO DISMISS UNDER THE TEXAS CITIZENS PARTICIPATION ACT FILED OCTOBER 21, 2014............................................................................................................................... 15 ANSWER FILED OCTOBER 21, 2014 ............................................................................................................ 18 NOTICE OF HEARING ON PLAINTIFF’S AMENDED MOTION TO DISMISS UNDER THE TEXAS CITIZENS PARTICIPATION ACT FILED OCTOBER 27, 2014 ............................ 20 AMENDED MOTION TO DISMISS UNDER THE TEXAS CITIZENS PARTICIPATION ACT WITH EXHIBITS FILED OCTOBER 27, 2014 ........................................................................................................... 21 EXHIBIT A ........................................................................................................................................................ 26 EXHIBIT B ........................................................................................................................................................ 34 EXHIBIT C ........................................................................................................................................................ 40 EXHIBIT D ........................................................................................................................................................ 46 EXHIBIT E ........................................................................................................................................................ 56 EXHIBIT F ........................................................................................................................................................ 104 EXHIBIT G ........................................................................................................................................................ 106 EXHIBIT H ........................................................................................................................................................ 111 PLAINTIFF’S ANSWER TO DEFENDANTS MOTION TO DISMISS WITH AFFIDAVIT FILED NOVEMBER 10, 2014........................................................................................................................... 115 FAWN D. NGUYEN’S AFFIDAIT ................................................................................................................ 120 PLAINTIFF’S SUPPLEMENTAL ANSWER TO DEFENDANTS MOTION TO DISMISS FILED NOVEMBER 13, 2014........................................................................................................................... 123 PROPOSED ORDER ON DEFENDANTS’ AMENDED MOTION TO DISMISS UNDER THE TEXAS CITIZENS PARTICIPATION ACT FILED NOVEMBER 14, 2014 ........................ 129 BRIEF IN SUPPORT OF AMENDED MOTION TO DISMISS UNDER THE TEXAS CITIZENS PARTICIPATION ACT WITH ATTACHMENTS FILED NOVEMBER 14, 2014....................................... 130 AFFIDAVIT OF THINH DAT NGUYEN .................................................................................................... 140 CASE LAW........................................................................................................................................................ 142 CASE LAW........................................................................................................................................................ 161 CASE LAW........................................................................................................................................................ 167 CASE LAW........................................................................................................................................................ 172 CASE LAW........................................................................................................................................................ 194 CASE LAW........................................................................................................................................................ 257 CASE LAW........................................................................................................................................................ 264 CASE LAW........................................................................................................................................................ 268 CASE LAW........................................................................................................................................................ 278 CASE LAW........................................................................................................................................................ 299

CASE LAW ........................................................................................................................................................ 311

INDEX ALYOSIUS HOANG AKA HOANG DUY HUNG VS. NO. 2014-59665 #14-14-00942-CV THINH DAT NGUYEN INDIVIDUAL THOI BAO HOUSTON AND THOI BAO PAGE ORDER ON DEFENDANTS’ AMENDED MOTION TO DISMISS UNDER THE TEXAS CITIZENS PARTICIPATION ACT SIGNED NOVEMBER 18, 2014 .............................................................................. 323 TRIAL COURT ACTIVITY INQUIRY SHEETS............................................................................................. 324 TRIAL COURT ELECTRONIC DOCKET SHEET........................................................................................ 325 NOTICE OF APPEAL BY ATTORNEY ALOYSIUS DUY-HUNG HOANG FILED NOVEMBER 24, 2014........................................................................................................................... 326 COVER PAGE TO NOTICE OF APPEAL ................................................................................................. 328 CERTIFICATE ................................................................................................................................................... 329 BILL OF COSTS ................................................................................................................................................ 330 COMPLETE ORIGINAL CLERKS RECORD. PW

JURN7 (NSA#) JUSTICE INFORMATION MANAGEMENT SYSTEM JAN 16, 2015(C1) ACT50 CIVIL COURT ACTIVITY OPT: _____ - ACT GENERAL INQUIRY PAGE: 1 - 1 CASE NUMBER: 201459665__ POST JUDGMENT NUMBER> __ CURRENT COURT: 215 PUB? _ CASE TYPE: LIBEL_____________________ CASE STATUS: CASE ON APPEAL____________ STYLE: HOANG, ALOYSIUS (AKA AL HOANG AKA VS. THOI BAO MAGAZINE_______________ SEQ ACT PJN DATE NUM CODE DESCRIPTION PJN COURT INS> _ 11/18/2014 2____ 11A__ _ DISMISSED ON DEFENDANT'S MOTION__ __ 215 1__ IMAGE NUM: 63220552________ PGS: 1___ LCD: 11182014 CLERK: SPENCER, JEANETT _ 11/18/2014 1____ PC___ _ PLAINTIFF COSTS _________________ __ 215 1__ LCD: 11182014 CLERK: SPENCER, JEANETT

==> *** (2) RECORDS FOUND *** 1=NOTICE INQ 2=SETTING INQ 3=ACT ENTRY 4=PARTY INQ 5=MIN. INQ.

6=CASE. SUMM. 7=BACKWARD 8=FORWARD 10=REFRESH 11=HELP

CERTIFICATE R

THE STATE OF TEXAS COUNTY OF HARRIS I, CHRIS DANIEL, Clerk of the District Court in and for Harris County, Texas, do hereby certify that the above and foregoing are true and correct copies of all the proceedings directed by Counsel and/or Rule 34 to be included in the Original Clerks Record in the Cause of

ALYOSIUS HOANG AKA HOANG DUY HUNG

VS. NO. 2014-59665

THINH DAT NGUYEN INDIVIDUAL THOI BAO HOUSTON AND THOI BAO

as the same appear from the originals now on file of record in this office.

GIVEN under my hand and seal of said Court at office in the City of Houston, on the 20TH day of JANUARY A.D., 2015

CHRIS DANIEL, CLERK DISTRICT COURT, HARRIS COUNTY, TEXAS

BY: /s/ PHYLLIS WASHINGTON PHYLLIS WASHINGTON, DEPUTY

AP4 R04-30-92 BILL OF COSTS APPELLATE COURT NO. 14-14-00942-CV

THE STATE OF TEXAS COUNTY OF HARRIS ALYOSIUS HOANG AKA HOANG DUY HUNG APPELLANT(S) VS. TRIAL COURT CASE NO. 2014-59665

THINH DAT NGUYEN INDIVIDUAL THOI BAO HOUSTON AND THOI BAO APPELLEE(S)

TO OFFICERS OF COURT,

CLERK'S COSTS ORIGINAL CLERKS RECORD $330.00 TOTAL $ $330.00

THE STATE OF TEXAS COUNTY OF HARRIS I, CHRIS DANIEL, Clerk of the District Court in and for Harris County, Texas, do hereby certify that the above is a Correct Bill of all Costs incurred in preparation of the above numbered and entitled suit up to this date.

IN WITNESS WHEREOF, I, hereunto affix my hand and seal of the Court at office in Houston, Texas this 20TH day of JANUARY A.D., 2015.

CHRIS DANIEL, CLERK DISTRICT COURT, HARRIS COUNTY, TEXAS BY: /s/ PHYLLIS WASHINGTON PHYLLIS WASHINGTON, DEPUTY

Revised July 12, 2012

APPENDIX 2

1 CAUSE NO. 2014-59665 ) ALOYSIUS HOANG ) IN THE DISTRICT COURT ) 4 ) PLAINTIFFS, ) 5 ) VS. ) 6 ) HARRIS COUNTY, TEXAS ) TOI BAG OF HOUSTON ) ) 8 ) ) 9 DEFENDANTS. ) 215TH JUDICIAL DISTRICT

15 MOTION TO DISMISS TEXAS CITIZENS PARTICIPATION ACT

20 On December 8, 2015, the following proceedings came on to be heard in the above-entitled and numbered cause before the Honorable, Elaine E. Palmer, Judge presiding, held in Houston, Harris County, Texas.

24 Proceedings reported by machine shorthand and computer-aided transcription.

KAREN D. DESHETLER, CSR 281-723-9090

1 APPEARANCES FOR THE PLAINTIFF: Mr. Aloysius Hoang Attorney at Law 801 Congress St., Ste. 350 Houston, Texas 77002 FOR THE DEFENDANT: Mr. Mark Bennett Bennett & Bennett 735 Oxford Street Houston, Texas 77007 713.224.1747

KAREN D. DESHETLER, CSR 281-723-9090

1 INDEX PAGE By the Court........................................... 4 By Mr. Bennett......................................... 4 By Mr. Hoang........................................... 7 By Mr. Bennett......................................... 10 By Mr. Hoang........................................... 11 By Mr. Bennett......................................... 12 By Mr. Hoang........................................... 13

KAREN D. DESHETLER, CSR 281-723-9090

1 THE COURT: Cause Number 2014-59665. Aloysius Hoang versus Toi Bag Magazine.

3 MR. BENNETT: Good morning. I am Mark Bennett for Mr. Nguyen and Toi Bag of Houston, which is the magazine.

5 We have a number of interested onlookers. Would you rather we did it at the bench?

7 THE COURT: Yes.

8 MR. BENNETT: I also have a Vietnamese interpreter for Mr. Nguyen if she may approach with us and Mr. Nguyen.

11 THE COURT: Okay.

12 MS. LE: Good morning. I'm Thuy Le. I represent the Defendant.

14 THE COURT: How do you spell your first Thuy, T-H-U-Y and L-E.

16 MR. BENNETT: Your Honor, what we have today is a Motion Under the Texas Citizens Participation Act to Dismiss the Case for Legal Fees and Other Relief. We are having a hearing rather than doing it by submission, because the statute requires a hearing. But the statute also requires that the Court consider the pleadings and the affidavits. So, it's not a hearing to take evidence. It's just a hearing to be the hearing to close out the evidence and then the Court has 30 days in which to rule on the motion. So, the Plaintiff has filed some pleadings. The Defendants have filed some pleadings

KAREN D. DESHETLER, CSR 281-723-9090

1 and today filed two affidavits. I don't know if those show up on your screen, yet. But this morning after coming to court we filed my affidavit, which is on legal fees. That's the affidavit of Mark Bennett. And affidavit of Mr. Nguyen.

5 That's affidavit of Thinh Dat Nguyen. I can give the Court copies, if you please, but if you're not anticipating making a decision right now, which I don't think you have to, they'll be on the system.

9 THE COURT: We are on the record.

10 MR. BENNETT: So, it's not a complex case, Your Honor. The Civil Practice and Remedies Code allows for a Motion to Dismiss a case if the case is based on the exercise of the right of free speech. Here Mr. Hoang's lawsuit is based on Mr. Nguyen's and the magazine's exercise of their right to free speech. That is criticizing Mr. Hoang who is a public official and a public figure. I don't think that he disputes he is both a public official and public figure. In order for him to overcome the motion he has to make a prima facia showing with clear and -- clear and specific evidence of each essential element of his claim. He has failed to do so and, so, end of the day the Court's going to have to grant the Motion to Dismiss. The statute provides for mandatory attorney's fees.

23 I have filed an affidavit on my attorney's fees. They are reasonable given the circumstances. And we're also asking for sanctions. My Amended Motion to Dismiss has various

KAREN D. DESHETLER, CSR 281-723-9090

1 attachments in which -- they're public records in which Mr. Hoang has filed other lawsuits to try to stop people from exercising they're first amendment right. The Texas Citizens Participation Act allows sanctions against a Plaintiff to discourage him from trying to shut down people's free speech by filing lawsuits. It's appropriate in this case. I don't know how much is appropriate. Maybe a token amount would discourage Mr. Hoang from doing this in the future. It might lead to be a very large amount. He could probably answer that better than I what it would take to stop him from filing lawsuits that attempt to punish people for exercising their free speech rights.

13 And with that, since we're in a hearing I guess we rest. We've filed the evidence. I want to make sure that the evidence is closed out before we leave here today so that we don't get into a situation where Mr. Hoang decides, oh, I can file this affidavit, I can file that affidavit. He is pro se. He is a licensed lawyer, but he as pro se and with all respect to him I want to make sure that we're clear that this is the evidence that we're going to be dealing with, so that if I filed a brief he doesn't come back and say, oh, I'm going say this is what.

23 MR. HOANG: Can I respond to his, Your Honor?

24 THE COURT: Yes.

25 MR. HOANG: First of all he says that I filed

KAREN D. DESHETLER, CSR 281-723-9090

1 all the lawsuits just to discourage other people. Your Honor, those lawsuits, we went through mediations. The Defendants wrote letter of apologies and in accordance to the mediation procedures once an apology like that and just to promote harmony I dismissed that. It cannot be a base just for this lawsuit, Your Honor. The second thing is, Your Honor, the anti -- statute, Chapter 27 of TCPR, Your Honor, doesn't allow the Defendant just to fabricate facts to liable somebody. In this case, Your Honor, I have filed my motions and supplemental answer. Clearly, the Defendant fabricated fact. Even today before coming to Court he called and he said that I was sued for calling a communist a communist. So, he affirms that I'm a communist. In reality I've been fighting against the communists over 30 years. I was imprisoned by the Vietnamese communist government in solitary confinement.

16 MR. BENNETT: I'm sorry, I have to object. The statute provides for evidence to be the pleadings and the affidavit and not for live testimony on the issues. Mr. Hoang has said this in his pleadings that he was imprisoned for fighting the communist. I don't dispute that he has said that and I know that he wants to make a persuasive case, but the statute requires it to be done in writing.

23 MR. HOANG: Yes, Your Honor. In my original petition I have laid out the elements very clearly that he called me a communist. He affirms that I'm a spy, an insider

KAREN D. DESHETLER, CSR 281-723-9090

1 of the communist regime working for the interests of the Vietnamese communist government. Your Honor, that's liable.

3 How could he identify me as an insider for the Vietnamese communist. And in an anticommunist community like in Houston, Your Honor, that would be a threat to my life. In reality, Your Honor, the second phrase, the second statement he made is this: Mr. Hoang, this is what it is, in his article, article here, Your Honor, and I have the certified translation already.

9 Hoang was planning to put a death threat bomb putting him and his family members of his house and then call the police to blame on the Vietnamese Nationalist Activist. Afterward, he took the pictures to take credit with the Vietnamese communists. Your Honor, this is not an opinion. This is statement of fact libeling me I was the victim of a death threat bomb right in front of my house. Now, he turn around and said that I put it just to try to get the credits with the communists. And that on prima facia case is already there, Your Honor. And then the first statement it says my father died because of an old accident. An undocumented immigrant was here. She negligently passed a red light and hit my father who then went to Ben Taub Hospital and he passed in Ben Taub Hospital in the year 2007. I, at that time, was not elected the President of the Vietnamese community, yet. But thousands of people already knew the facts. They went to the funeral.

25 Then after that I got elected as the President of the

KAREN D. DESHETLER, CSR 281-723-9090

1 Vietnamese community, Your Honor.

2 MR. BENNETT: Again, Your Honor, for the record and I stopped talking, but I have to object that the evidence in this case is the pleadings and the affidavits.

5 MR. HOANG: These are in the pleadings. It's already in the pleadings.

7 MR. BENNETT: Some of this is in the pleadings, but I'm saying he wants to put more into the record -- not really what the statute allows.

10 MR. HOANG: Mr. Mark Bennett, I let you have your chance. This is in the pleadings. I just repeat the pleadings that is there. He then turn around and said my father commit suicide, because my father found out I was following the communists. It's not true, Your Honor. Those are the facts that he made me affirm, Your Honor. It's not opinion. It's not opinion, Your Honor. Maybe this is opinion.

17 He has that right. I understand that he has the First Amendment right, but making up facts like that, Your Honor, damage not only my reputation, but also putting my life and my family members in jeopardy.

21 And in reality he objected, but I have -- later on I have proof that I have asked him numerous times please have a debate, you know. Because we have ways to fight against the communists. If you can show me a better way I will kneel down and carry your shoes. From that day on I will be your

KAREN D. DESHETLER, CSR 281-723-9090

1 servant the rest of my life. I don't want to pick on those people. The statute here, Your Honor, you have to read the statute, the legislative intent is to protect the little ones.

4 To protect those -- to protect those who write comments to the editor-in-chief. But in this case, I don't know, he's the editor-in-chief. Is he protected under statute? That's the first question.

8 Now, if the statutes are going to be applied to him the second issue is, Your Honor, does the statute is going to protect him from fabricating facts, Your Honor. And I don't think the statute does. I have provided numerous cases from Texas Supreme Court. Defamation by itself, Your Honor, is the fabrication of fact like that. He's not going to be protected.

14 MR. BENNETT: You rest?

15 MR. HOANG: Yes.

16 THE COURT: Okay.

17 MR. BENNETT: I think the Defendant has rested.

18 I would like to respond to two things. One is that Mr. Hoang filed Phoungh Dingh Nguyen's affidavit, which purports to be a translation of this article that he complains about from the paper. And I would note, I don't like the allegation that somebody's father committed suicide because of what the son had done. If that were asserted as true I wouldn't like it. I don't think that that's very nice. I would note, however, that in the translation it said he succeeded to an extent that the

KAREN D. DESHETLER, CSR 281-723-9090

1 Tong Nguyen on-line raised the question that his father was so shameful of the betrayal son, whereby he committed suicide. To that extent it's reporting what some on-line source said.

4 What Mr. Hoang is missing here at the end of the day is malice, actual malice. Actual malice means that Mr. Nguyen and the magazine knew that they were publishing falsity or were reckless about whether they were publishing falsity.

8 And all of the evidence that he has raised, none of it makes the prima facia case there was actual malice. I have briefed it for you. I can provide the brief. I haven't filed it, yet.

11 I can give you a courtesy copy now. I'll file it when I get back to my office. I'll give Mr. Hoang a copy and I have the cases in support of it, as well, if otherwise we're done with this hearing.

15 MR. HOANG: Your Honor, I will respond to that actual malice. He raised the first statement of fact that Mr. Nguyen stated that posted on-line that my father committed suicide. They say that. I object to it, Your Honor. Now, even if that is the case those are two of the statements, Your Honor. He called me an insider working for the communist regime. And, also, the second thing is he said that I planted a bomb in front of my house. Those, Your Honor, is not a suspicion or is not an opinion. It's a statement of fact.

24 Those facts, I have requested to have a debate with him. But, Your Honor, it's very clear that he didn't check it. Actual

KAREN D. DESHETLER, CSR 281-723-9090

1 malice is there, Your Honor. Not one day. He doesn't publish one magazine only. He publishes it many issues. Issue in and issue out. So, that is something that is so constant, Your Honor. And that's actual malice, Your Honor. He can publish it. I told him that. He can contact me, call me, ask me. I can give him answer. I even provided him all the messages. He didn't even care to bring it back. He has his affidavit. I have my own allegation. But I provided him opportunity to contact me. I have tons of witnesses on this. I have provided him chance to say, this is not right. You can contact me. I will provide you my version. Your Honor, for four years he has only printed his version. Not one from me. And I have objection to that many times. Actual malice is already there.

14 MR. BENNETT: Since it's my motion I suppose I can have the last word?

16 THE COURT: Sure.

17 MR. BENNETT: I think Mr. Hoang misunderstands actual malice. A failure to investigate is not actual malice.

19 He has to show that Mr. Nguyen actually knew it wasn't true or acted in reckless disregard. And he talks about opinion versus fact. The nature of actual malice law, first amendment law is that a newspaper has the right to be wrong without being sued.

23 A newspaper can get the facts wrong without being liable for it as long as the newspaper is not acting with this actual malice, which is very high standard which, Mr. Hoang's evidence for

KAREN D. DESHETLER, CSR 281-723-9090

1 purposes of this hearing does not meet.

2 And I thank you for your time, Your Honor. If you would like a courtesy copy of my brief now I can give it to you or I will file it and you will have it electronically. I also have copies of the cases. I can provide those to you now or when I file the brief I can provide copies attached electronically.

8 THE COURT: Just do it all electronically.

9 MR. HOANG: May I respond to that? To the brief? I haven't received his brief.

11 THE COURT: You have or have not?

12 MR. HOANG: I have not.

13 MR. BENNETT: He has now.

14 MR. HOANG: Okay. Thank you. First thing and then the second thing is if the magazine makes a false statement of fact or because of negligence they print it wrong they have to apologize. And this is the case, I put it in my pleadings very clearly from the beginning we have dinner at his house. And I said, "They are inviting me to go to Vietnam with them." He said immediately, "If you go to Vietnam I'm going to pull you down. I'm going to meet you and pull you down." Actual malice is there, Your Honor.

23 MR. BENNETT: My plan to get the last word didn't work, Your Honor. I thank you for your time and I'll provide you with the brief. I think you will be able to decide

KAREN D. DESHETLER, CSR 281-723-9090

1 based on the papers.

2 THE COURT: All right.

3 MR. BENNETT: Thank you very much.

6 (Hearing concluded.)

KAREN D. DESHETLER, CSR 281-723-9090

1 STATE OF TEXAS COUNTY OF HARRIS 3 I, Karen D. deShetler, Deputy Court Reporter, in and for the 215th District Court of Harris County, State of Texas, do hereby certify that the above and foregoing contains a true and correct transcription of all portions of evidence and other proceedings requested in writing by counsel for the parties to be included in this volume of the Reporter's Record, in the above-styled and numbered cause, all of which occurred in open court or in chambers and were reported by me. 11 I further certify that this Reporter's Record of the proceedings truly and correctly reflects the exhibits, if any, admitted by the respective parties.

14 I further certify that the total cost for the preparation of the Reporter's Record is $100 and will be paid by the Plaintiff.

17 WITNESS MY OFFICIAL HAND this the 25th day of August, 2015.

20 //Karen D. deShetler// __________________________________________ Karen D. deShetler, CSR 1688 22 Expiration Date: 12/31/2016 Certified Court Reporter 23 74 Lyric Arbor Circle The Woodlands, Texas 77381 24 Telephone: 281-723-9090

KAREN D. DESHETLER, CSR 281-723-9090

Case-law data current through December 31, 2025. Source: CourtListener bulk data.