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

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

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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 801 Congress St #350 Houston TX 77002 Tel. 281-788-8486 Fax 713-224-3111 Email: Alhoang77072@Gmail.com

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

1 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 917 Franklin Street, Fourth Floor Houston TX 77002 Tel. 713-224-1747 Email: mb@ivi3.com

2 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]

3 INDEX OF AUTHORITIES

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

4 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]

5 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?

6 STATEMENT REGARDING ORAL ARGUMENT

Appellant/Plaintiff does not request an oral argument.

7 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

8 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.

9 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].

10 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].

11 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

12 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

13 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].

14 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

15 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

davenguyent@gmail.com 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

16 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].

17 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?"

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,

160 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

18 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,

19 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

12 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.

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?

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

20 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

21 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 801 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

22 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 801 CONGRESS STE 350 HOUSTON, TX 77002

Attorney for Appellee:

MARK WILLIAM BENNETT ATTY AT LAW 917 FRANKLIN ST 4TH FLR HOUSTON, TX 77002

1 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

2 INDEX

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

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 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

324 325 326 327 328 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

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 R04-30-92 329 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

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.

Revised July 12, 2012

330 APPENDIX 2 1

1 CAUSE NO. 2014-59665

2 ) 3 ALOYSIUS HOANG ) IN THE DISTRICT COURT ) 4 ) PLAINTIFFS, ) 5 ) VS. ) 6 ) HARRIS COUNTY, TEXAS ) 7 TOI BAG OF HOUSTON ) ) 8 ) ) 9 DEFENDANTS. ) 215TH JUDICIAL DISTRICT

15 MOTION TO DISMISS TEXAS CITIZENS PARTICIPATION ACT 16

20 On December 8, 2015, the following proceedings

21 came on to be heard in the above-entitled and numbered cause

22 before the Honorable, Elaine E. Palmer, Judge presiding, held

23 in Houston, Harris County, Texas.

24 Proceedings reported by machine shorthand and

25 computer-aided transcription.

KAREN D. DESHETLER, CSR 281-723-9090 2

1 APPEARANCES

2 FOR THE PLAINTIFF:

3 Mr. Aloysius Hoang Attorney at Law 4 801 Congress St., Ste. 350 Houston, Texas 77002 5

6 FOR THE DEFENDANT:

7 Mr. Mark Bennett Bennett & Bennett 8 735 Oxford Street Houston, Texas 77007 9 713.224.1747

KAREN D. DESHETLER, CSR 281-723-9090 3

1 INDEX PAGE 2 By the Court........................................... 4 3 By Mr. Bennett......................................... 4 4 By Mr. Hoang........................................... 7 5 By Mr. Bennett......................................... 10 6 By Mr. Hoang........................................... 11 7 By Mr. Bennett......................................... 12 8 By Mr. Hoang........................................... 13 9

KAREN D. DESHETLER, CSR 281-723-9090 4

1 THE COURT: Cause Number 2014-59665. Aloysius

2 Hoang versus Toi Bag Magazine.

3 MR. BENNETT: Good morning. I am Mark Bennett

4 for Mr. Nguyen and Toi Bag of Houston, which is the magazine.

5 We have a number of interested onlookers. Would you rather we

6 did it at the bench?

7 THE COURT: Yes.

8 MR. BENNETT: I also have a Vietnamese

9 interpreter for Mr. Nguyen if she may approach with us and Mr.

10 Nguyen.

11 THE COURT: Okay.

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

13 represent the Defendant.

14 THE COURT: How do you spell your first Thuy,

15 T-H-U-Y and L-E.

16 MR. BENNETT: Your Honor, what we have today is

17 a Motion Under the Texas Citizens Participation Act to Dismiss

18 the Case for Legal Fees and Other Relief. We are having a

19 hearing rather than doing it by submission, because the statute

20 requires a hearing. But the statute also requires that the

21 Court consider the pleadings and the affidavits. So, it's not

22 a hearing to take evidence. It's just a hearing to be the

23 hearing to close out the evidence and then the Court has 30

24 days in which to rule on the motion. So, the Plaintiff has

25 filed some pleadings. The Defendants have filed some pleadings

KAREN D. DESHETLER, CSR 281-723-9090 5

1 and today filed two affidavits. I don't know if those show up

2 on your screen, yet. But this morning after coming to court we

3 filed my affidavit, which is on legal fees. That's the

4 affidavit of Mark Bennett. And affidavit of Mr. Nguyen.

5 That's affidavit of Thinh Dat Nguyen. I can give the Court

6 copies, if you please, but if you're not anticipating making a

7 decision right now, which I don't think you have to, they'll be

8 on the system.

9 THE COURT: We are on the record.

10 MR. BENNETT: So, it's not a complex case, Your

11 Honor. The Civil Practice and Remedies Code allows for a

12 Motion to Dismiss a case if the case is based on the exercise

13 of the right of free speech. Here Mr. Hoang's lawsuit is based

14 on Mr. Nguyen's and the magazine's exercise of their right to

15 free speech. That is criticizing Mr. Hoang who is a public

16 official and a public figure. I don't think that he disputes

17 he is both a public official and public figure. In order for

18 him to overcome the motion he has to make a prima facia showing

19 with clear and -- clear and specific evidence of each essential

20 element of his claim. He has failed to do so and, so, end of

21 the day the Court's going to have to grant the Motion to

22 Dismiss. The statute provides for mandatory attorney's fees.

23 I have filed an affidavit on my attorney's fees. They are

24 reasonable given the circumstances. And we're also asking for

25 sanctions. My Amended Motion to Dismiss has various

KAREN D. DESHETLER, CSR 281-723-9090 6

1 attachments in which -- they're public records in which Mr.

2 Hoang has filed other lawsuits to try to stop people from

3 exercising they're first amendment right. The Texas Citizens

4 Participation Act allows sanctions against a Plaintiff to

5 discourage him from trying to shut down people's free speech by

6 filing lawsuits. It's appropriate in this case. I don't know

7 how much is appropriate. Maybe a token amount would discourage

8 Mr. Hoang from doing this in the future. It might lead to be a

9 very large amount. He could probably answer that better than I

10 what it would take to stop him from filing lawsuits that

11 attempt to punish people for exercising their free speech

12 rights.

13 And with that, since we're in a hearing I guess

14 we rest. We've filed the evidence. I want to make sure that

15 the evidence is closed out before we leave here today so that

16 we don't get into a situation where Mr. Hoang decides, oh, I

17 can file this affidavit, I can file that affidavit. He is pro

18 se. He is a licensed lawyer, but he as pro se and with all

19 respect to him I want to make sure that we're clear that this

20 is the evidence that we're going to be dealing with, so that if

21 I filed a brief he doesn't come back and say, oh, I'm going say

22 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 7

1 all the lawsuits just to discourage other people. Your Honor,

2 those lawsuits, we went through mediations. The Defendants

3 wrote letter of apologies and in accordance to the mediation

4 procedures once an apology like that and just to promote

5 harmony I dismissed that. It cannot be a base just for this

6 lawsuit, Your Honor. The second thing is, Your Honor, the anti

7 -- statute, Chapter 27 of TCPR, Your Honor, doesn't allow the

8 Defendant just to fabricate facts to liable somebody. In this

9 case, Your Honor, I have filed my motions and supplemental

10 answer. Clearly, the Defendant fabricated fact. Even today

11 before coming to Court he called and he said that I was sued

12 for calling a communist a communist. So, he affirms that I'm a

13 communist. In reality I've been fighting against the

14 communists over 30 years. I was imprisoned by the Vietnamese

15 communist government in solitary confinement.

16 MR. BENNETT: I'm sorry, I have to object. The

17 statute provides for evidence to be the pleadings and the

18 affidavit and not for live testimony on the issues. Mr. Hoang

19 has said this in his pleadings that he was imprisoned for

20 fighting the communist. I don't dispute that he has said that

21 and I know that he wants to make a persuasive case, but the

22 statute requires it to be done in writing.

23 MR. HOANG: Yes, Your Honor. In my original

24 petition I have laid out the elements very clearly that he

25 called me a communist. He affirms that I'm a spy, an insider

KAREN D. DESHETLER, CSR 281-723-9090 8

1 of the communist regime working for the interests of the

2 Vietnamese communist government. Your Honor, that's liable.

3 How could he identify me as an insider for the Vietnamese

4 communist. And in an anticommunist community like in Houston,

5 Your Honor, that would be a threat to my life. In reality,

6 Your Honor, the second phrase, the second statement he made is

7 this: Mr. Hoang, this is what it is, in his article, article

8 here, Your Honor, and I have the certified translation already.

9 Hoang was planning to put a death threat bomb putting him and

10 his family members of his house and then call the police to

11 blame on the Vietnamese Nationalist Activist. Afterward, he

12 took the pictures to take credit with the Vietnamese

13 communists. Your Honor, this is not an opinion. This is

14 statement of fact libeling me I was the victim of a death

15 threat bomb right in front of my house. Now, he turn around

16 and said that I put it just to try to get the credits with the

17 communists. And that on prima facia case is already there,

18 Your Honor. And then the first statement it says my father

19 died because of an old accident. An undocumented immigrant was

20 here. She negligently passed a red light and hit my father who

21 then went to Ben Taub Hospital and he passed in Ben Taub

22 Hospital in the year 2007. I, at that time, was not elected

23 the President of the Vietnamese community, yet. But thousands

24 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 9

1 Vietnamese community, Your Honor.

2 MR. BENNETT: Again, Your Honor, for the record

3 and I stopped talking, but I have to object that the evidence

4 in this case is the pleadings and the affidavits.

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

6 already in the pleadings.

7 MR. BENNETT: Some of this is in the pleadings,

8 but I'm saying he wants to put more into the record -- not

9 really what the statute allows.

10 MR. HOANG: Mr. Mark Bennett, I let you have

11 your chance. This is in the pleadings. I just repeat the

12 pleadings that is there. He then turn around and said my

13 father commit suicide, because my father found out I was

14 following the communists. It's not true, Your Honor. Those

15 are the facts that he made me affirm, Your Honor. It's not

16 opinion. It's not opinion, Your Honor. Maybe this is opinion.

17 He has that right. I understand that he has the First

18 Amendment right, but making up facts like that, Your Honor,

19 damage not only my reputation, but also putting my life and my

20 family members in jeopardy.

21 And in reality he objected, but I have -- later

22 on I have proof that I have asked him numerous times please

23 have a debate, you know. Because we have ways to fight against

24 the communists. If you can show me a better way I will kneel

25 down and carry your shoes. From that day on I will be your

KAREN D. DESHETLER, CSR 281-723-9090 10

1 servant the rest of my life. I don't want to pick on those

2 people. The statute here, Your Honor, you have to read the

3 statute, the legislative intent is to protect the little ones.

4 To protect those -- to protect those who write comments to the

5 editor-in-chief. But in this case, I don't know, he's the

6 editor-in-chief. Is he protected under statute? That's the

7 first question.

8 Now, if the statutes are going to be applied to

9 him the second issue is, Your Honor, does the statute is going

10 to protect him from fabricating facts, Your Honor. And I don't

11 think the statute does. I have provided numerous cases from

12 Texas Supreme Court. Defamation by itself, Your Honor, is the

13 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

19 filed Phoungh Dingh Nguyen's affidavit, which purports to be a

20 translation of this article that he complains about from the

21 paper. And I would note, I don't like the allegation that

22 somebody's father committed suicide because of what the son had

23 done. If that were asserted as true I wouldn't like it. I

24 don't think that that's very nice. I would note, however, that

25 in the translation it said he succeeded to an extent that the

KAREN D. DESHETLER, CSR 281-723-9090 11

1 Tong Nguyen on-line raised the question that his father was so

2 shameful of the betrayal son, whereby he committed suicide. To

3 that extent it's reporting what some on-line source said.

4 What Mr. Hoang is missing here at the end of the

5 day is malice, actual malice. Actual malice means that Mr.

6 Nguyen and the magazine knew that they were publishing falsity

7 or were reckless about whether they were publishing falsity.

8 And all of the evidence that he has raised, none of it makes

9 the prima facia case there was actual malice. I have briefed

10 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

12 back to my office. I'll give Mr. Hoang a copy and I have the

13 cases in support of it, as well, if otherwise we're done with

14 this hearing.

15 MR. HOANG: Your Honor, I will respond to that

16 actual malice. He raised the first statement of fact that Mr.

17 Nguyen stated that posted on-line that my father committed

18 suicide. They say that. I object to it, Your Honor. Now,

19 even if that is the case those are two of the statements, Your

20 Honor. He called me an insider working for the communist

21 regime. And, also, the second thing is he said that I planted

22 a bomb in front of my house. Those, Your Honor, is not a

23 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,

25 Your Honor, it's very clear that he didn't check it. Actual

KAREN D. DESHETLER, CSR 281-723-9090 12

1 malice is there, Your Honor. Not one day. He doesn't publish

2 one magazine only. He publishes it many issues. Issue in and

3 issue out. So, that is something that is so constant, Your

4 Honor. And that's actual malice, Your Honor. He can publish

5 it. I told him that. He can contact me, call me, ask me. I

6 can give him answer. I even provided him all the messages. He

7 didn't even care to bring it back. He has his affidavit. I

8 have my own allegation. But I provided him opportunity to

9 contact me. I have tons of witnesses on this. I have provided

10 him chance to say, this is not right. You can contact me. I

11 will provide you my version. Your Honor, for four years he has

12 only printed his version. Not one from me. And I have

13 objection to that many times. Actual malice is already there.

14 MR. BENNETT: Since it's my motion I suppose I

15 can have the last word?

16 THE COURT: Sure.

17 MR. BENNETT: I think Mr. Hoang misunderstands

18 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

20 acted in reckless disregard. And he talks about opinion versus

21 fact. The nature of actual malice law, first amendment law is

22 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

24 as long as the newspaper is not acting with this actual malice,

25 which is very high standard which, Mr. Hoang's evidence for

KAREN D. DESHETLER, CSR 281-723-9090 13

1 purposes of this hearing does not meet.

2 And I thank you for your time, Your Honor. If

3 you would like a courtesy copy of my brief now I can give it to

4 you or I will file it and you will have it electronically. I

5 also have copies of the cases. I can provide those to you now

6 or when I file the brief I can provide copies attached

7 electronically.

8 THE COURT: Just do it all electronically.

9 MR. HOANG: May I respond to that? To the

10 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

15 then the second thing is if the magazine makes a false

16 statement of fact or because of negligence they print it wrong

17 they have to apologize. And this is the case, I put it in my

18 pleadings very clearly from the beginning we have dinner at his

19 house. And I said, "They are inviting me to go to Vietnam with

20 them." He said immediately, "If you go to Vietnam I'm going to

21 pull you down. I'm going to meet you and pull you down."

22 Actual malice is there, Your Honor.

23 MR. BENNETT: My plan to get the last word

24 didn't work, Your Honor. I thank you for your time and I'll

25 provide you with the brief. I think you will be able to decide

KAREN D. DESHETLER, CSR 281-723-9090 14

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 15

1 STATE OF TEXAS

2 COUNTY OF HARRIS

3 I, Karen D. deShetler, Deputy Court Reporter, in and

4 for the 215th District Court of Harris County, State of Texas,

5 do hereby certify that the above and foregoing contains a true

6 and correct transcription of all portions of evidence and other

7 proceedings requested in writing by counsel for the parties to

8 be included in this volume of the Reporter's Record, in the

9 above-styled and numbered cause, all of which occurred in open

10 court or in chambers and were reported by me.

11 I further certify that this Reporter's Record of the

12 proceedings truly and correctly reflects the exhibits, if any,

13 admitted by the respective parties.

14 I further certify that the total cost for the

15 preparation of the Reporter's Record is $100 and will be paid

16 by the Plaintiff.

17 WITNESS MY OFFICIAL HAND this the 25th day of

18 August, 2015.

20 //Karen D. deShetler// __________________________________________ 21 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