Nguyen-Lam v. Cao: Amendment of Complaint After Anti-SLAPP Motion Filed

California Defamation precedent never ceases to amaze me due to its complexity and fact specific holdings. The case of Nguyen-Lam v. Cao (2009) WL 484589 illustrates my point perfectly.  In Nguyen-Lam, a Vietnamese woman who was slated to become the nation’s first Vietnamese superintendent of a public school district, sued the Defendant for slander per se, among other claims.

The Defendant allegedly said that Plaintiff was a "Communist." Plaintiff alleges that this comment caused the school district to rescind her appointment.  The complaint did not allege that Defendant acted with actual malice, at least not in the those words.

Defendant filed an answer containing several affirmative defenses; but no privileges.  He filed an anti-SLAPP motion within a few days, arguing that any statements he made were pursuant to his right of free speech and that Plaintiff was a public figure and that her appointment was a matter of public interest.

The court effectively denied the anti-SLAPP but not in the way one might expect.  Instead of straight-out denying the motion, the court allowed Plaintiff to amend her complaint to allege actual malice. This, in effect, rendered the anti-SLAPP motion moot.

Defendant appealed the decision of the trial court and the appellate court affirmed.

The appellate court affirmed the decision because

"plaintiff’s request for amendment to meet her burden on the second prong proceeds from timely submitted facts already before the court."

In other words, since the facts were already before the court, there would be no danger that

"the purpose of the strike procedure will be thwarted with delay, distraction, or increased costs."

Aside from the holding there are some other important lessons to be taken from this case:

  • Raise all your important points in an anti-SLAPP motion because you may not raise new points in a reply brief (Here, Defendant did not address why the court should strike the ninth, tenth, or eleventh causes of action; court denied anti-SLAPP motion as to these causes of action holding that it was improper to raise new points in a reply brief for the first time.)
  • Plead actual malice clearly and separately from garden variety malice otherwise the court may sustain a demurrer to the complaint.  Use the language of New York Times v. Sullivan. While the court did not squarely address this issue (because it didn’t need to) it did seem to find it important enough to discuss it at length.
  • Political labels like "Communist" can (not must) be construed as false statements of fact.  Do not assume that it is merely opinion. You should evaluate each statement in dispute with an experienced attorney you trust.

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