Filed 4/25/14 Margolis v. Tran CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

JOEL JEREMY MARGOLIS,

Cross-complainant and Respondent,

v.

MONG YEN TRAN,

Cross-defendant and Appellant.

 H038739

 (Santa Clara County

 Super. Ct. No. 1-10-CV180214)

Appellant Mong Yen Tran appeals from the trial court’s denial of her special 

motion to strike respondent Joel Jeremy Margolis’s cross-complaint for slander per se 

and intentional interference with economic relations. (Code Civ. Proc., § 425.16.)1She 

contends that the trial court erred in denying the motion because (1) her statements were 

made in a public forum in connection with a public issue or an issue of public interest and 

(2) Margolis failed to establish a probability of success on the merits. We affirm.

I. Background

Tran lived with her daughter Ngoc Giau Nguyen in San Jose. Nguyen defaulted 

on her mortgage payments in late 2008 or early 2009. She retained Margolis to help her 

 

1

Subsequent statutory references are to the Code of Civil Procedure unless 

otherwise noted.
2

apply for a loan modification. The lender refused to modify the loan, and Nguyen lost 

her house to foreclosure. In August 2010, she sued Margolis for professional negligence, 

breach of fiduciary duty, unfair business practices, and intentional misrepresentation. 

Nguyen’s complaint alleged that Margolis “fail[ed] to do anything about the loan 

modification or pending foreclosure,” “allow[ed] a non-attorney to render legal advice” 

to her, “never performed any legal service whatsoever and completely failed to 

communicate with his client.” 

Margolis cross-complained against Nguyen and Does 1-100 for slander per se and 

intentional interference with economic relations. He alleged that cross-defendants made 

false statements about him during a call-in Vietnamese language radio broadcast about

real estate topics in August 2009. Specifically, Margolis alleged that cross-defendants

stated that he “caused [Nguyen] to lose her house; . . . did nothing to help [Nguyen] on 

her case; . . . never communicated with his clients; . . . [and] kept [Nguyen’s] money after 

failing to work on her case.” Margolis alleged that several of his clients came to his 

office “immediately” after the broadcast to express concern about the statements they 

heard on the radio. “Multiple prospective clients and current clients either dropped 

[Margolis’s] services or decided not to retain [his] services as a result of the radio 

broadcast.” 

In September 2011, Margolis moved for summary judgment on Nguyen’s 

complaint. The grounds for the motion were that her causes of action for professional 

negligence, breach of fiduciary duty, and unfair business practices were time-barred and 

that her cause of action for intentional misrepresentation had no merit because she could 

not establish one or more required elements. 

In February 2012, Margolis filed a second amended cross-complaint that 

substituted Tran for the fictitiously named Doe 1. The amended cross-complaint alleged

that Nguyen and Tran stated during the radio broadcast that Margolis “caused [Nguyen] 
3

to lose her house; . . . did nothing to help [Nguyen] on her case; . . . never communicated 

with his clients; . . . [and] kept [Nguyen’s] money after failing to work on her case.” 

In March 2012, the trial court granted summary judgment for Margolis on 

Nguyen’s complaint. The court entered judgment in his favor. 

Tran responded to Margolis’s cross-complaint with a special motion to strike

(§ 425.16).2She argued that her statements were protected under section 425.16, 

subdivision (e)(3) “because they were . . . made in a public forum, namely a public radio 

program, concerning a matter of public interest, namely informing consumers that 

retention of an attorney does not guarantee that a loan modification request will be 

granted, and of the problems and uncertainty of the loan modification process.”

Alternatively, Tran asserted that her statements were protected under section 425.16, 

subdivision (e)(4) because they were “matters of public interests, specifically, the results 

of her hiring an attorney to process a loan modification request.” She also argued that 

there was no probability that Margolis would prevail on his cross-complaint. She 

submitted her own declaration and declarations from the broadcast’s three cohosts in 

support of her motion. She also asked the court to take judicial notice of certain 

pleadings filed in the action and of a stipulation and order filed in the State Bar Court. 

Tran admitted calling in to the radio program, which she said “covered matters 

related to real estate and the loan modification process.” She “unequivocally” denied 

making “any of the statements alleged in the Second Amended Cross-Complaint.” She 

declared, “I said I had sought the help of an attorney for a loan modification, and that the 

attorney’s office had represented that the attorney could help me with the loan 

modification. I stated on the program that even after they failed to obtain the loan 

modification for us, the law office continued to tell me not to worry and that they can still 

 

2

Section 425.16 motions are also referred to as anti-SLAPP motions. “SLAPP is an 

acronym for ‘strategic lawsuit against public participation.’ ” (Simpson Strong-Tie Co., 

Inc. v. Gore (2010) 49 Cal.4th 12, 16, fn. 1.)
4

help me keep my house. The law office continued to make these promises even though I 

constantly advised them I had received default and foreclosure notices from the bank and 

we were in the process of being evicted. Despite their repeated assurances, we still ended 

up with our house being foreclosed.” Tran said she did not identify herself during her 

“brief” call. She also declared that she “never identified [Margolis] as the attorney nor 

identified his law office . . . .” She asserted that Margolis’s wife and office manager

Tuyet Margolis3“confronted” her about her statements a few days after the radio 

broadcast. Tran said Tuyet told her that the person who prepared Nguyen’s loan 

modification application heard the broadcast and told Tuyet about it. Tran said she 

informed Tuyet “that I spoke the truth about what had happened to our loan 

modification . . . .” 

Each of the broadcast’s three cohosts declared that the program discussed “real 

estate matters, including loan modifications.” Each remembered a female caller who 

stated “in essence” that she “hired an attorney to help her process a loan modification 

request with the bank, but . . . the request was denied and her home was foreclosed.” 

Each learned after the show that the caller was Tran. Each said that Tran “did not 

identify by name the attorney or the law office.” Each explained that the program had a 

“general policy” of not allowing any caller to disclose the name of any attorney or 

business that the caller is or was involved with. 

Margolis argued in opposition to Tran’s motion that her statements were not 

protected by the anti-SLAPP law because “a private attorney’s conduct with a client’s 

private case is not a matter of public issue.” He supported his opposition with 

declarations from a client and from Tuyet. He asked the court to take judicial notice of 

 

3 Because Margolis and his wife share a surname, we refer to Tuyet by her given

name, not out of disrespect but for convenience and clarity.
5

pleadings and documents filed in the action, including the order granting summary 

judgment in his favor. 

Margolis’s client Hoang Mai declared that he listened to a Vietnamese radio 

program called Selection Realty in the summer of 2009. Mai heard a call-in guest on the 

program “discuss . . . a law office in Milpitas that had a ‘short Vietnamese woman’ with a 

‘white American’ lawyer.” Mai “immediately knew that the call-in-guest was referring 

to [Margolis] and his office manager as his office is the only office in Milpitas, or in the 

surrounding areas, that fits the call-in-guest’s description.” The caller “said that the Law 

Office had caused the call-in-guest to lose her house.” The caller also “said that the 

‘short Vietnamese woman’ did nothing for the call-in-guest’s file.” Mai declared that he 

went to Margolis’s office “immediately” after hearing the caller’s remarks “because I 

knew the speaker was referring to that office.” 

Tuyet declared that Mai came to the firm’s office and told her what he heard on

the radio broadcast. Specifically, Mai reported “that he had heard a woman on the 

program say that our office had caused her to lose her house and that our office did no 

work on her file.” Tuyet stated that “[a]s a result of the slanderous statements on the 

radio, we lost current and prospective clients and had to expend time and money to assure 

our current clients that the statements were untrue.” She denied discussing the 

“slanderous statements . . . or any appearance made by [Tran] on any radio station” with 

either Tran or Nguyen. 

Tuyet also declared that neither she “nor anyone else in our office” told Nguyen or 

Tran “that they could keep their property following [the] foreclosure sale.” She 

explained that she offered to return Nguyen’s $3,000 retainer to Tran “shortly” after 

Nguyen’s loan modification was denied but “[a]t that time, [Tran] refused to accept the 

money.” 

The trial court granted the parties’ requests for judicial notice. The court denied 

Tran’s motion. The court found that Tran’s statements did not involve a topic of 
6

widespread public interest. It explained that Tran had failed to provide the court “with 

any context in which to evaluate the public’s potential interest in hearing about her issues 

with Margolis over a loan modification.” “[She] could have at least demonstrated the 

extent of the public’s interest in this story prior to or at the time she made the statement” 

but she did not do so. Nor did she “attempt to argue that her failed loan modification 

sparked some sort of public debate on loan modifications.” The court stated that “[i]f 

anything, it seems the public interest [in] this story was fueled simply by Tran’s radio 

broadcast, but ‘[a] person cannot turn otherwise private information into a matter of 

public interest simply by communicating it to a large number of people.’ ([Rivero v. 

American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 

Cal.App.4th 913, 926 (Rivero)].) Also, ‘the focus of the speaker’s conduct should be the 

public interest rather than a mere effort “to gather ammunition for another round of 

[private] controversy . . . .” [Citation.]’ (Weinberg v. Feisel (2003) 110 Cal.App.4th 

1122, 1132-1133 [(Weinberg)].)” The court found it “difficult to conceive of Tran’s 

statement on the radio as an attempt to protect or alert the public or otherwise contribute 

to a public debate; it seems she simply was commenting on the details of a private dispute 

and trying to publicly cast Margolis in a bad light.” “It was Tran’s initial burden to make 

a prima facie showing that her statements arose from protected activity.” Since she failed 

to satisfy that burden, the burden never shifted to Margolis to establish a probability that 

he would prevail on his claims. The court denied Tran’s request for attorney’s fees. Tran 

filed a timely notice of appeal. 

II. Discussion

Tran argues that the trial court erred in denying her anti-SLAPP motion because 

her statements during the radio broadcast were “protected under both [section 425.16] 

subdivision (e)(3) (statements made in a public forum in connection with a public 
7

interest) and subdivision (e)(4) (statements in connection with a public issue or an issue 

of public interest.)” We disagree.

“A cause of action against a person arising from any act of that person in 

furtherance of the person’s right of petition or free speech under the United States

Constitution or the California Constitution in connection with a public issue shall be 

subject to a special motion to strike, unless the court determines that the [crosscomplainant] has established that there is a probability that the [cross-complainant] will 

prevail on the claim.” (§ 425.16, subd. (b)(1).) “In making its determination, the court 

shall consider the pleadings, and supporting and opposing affidavits stating the facts on 

which the liability or the defense is based.” (§ 425.16, subd. (b)(2).)

“ ‘Section 425.16 posits . . . a two-part process for determining whether an action 

is a SLAPP. First, the court decides whether the [cross-defendant] has made a threshold 

showing that the challenged cause of action is one arising from protected activity. . . . If 

the court finds that such a showing has been made, it must then determine whether the 

[cross-complainant] has demonstrated a probability of prevailing on the claim.’ 

[Citation.] ‘Only a cause of action that satisfies both prongs of the anti-SLAPP statute—

i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a 

SLAPP, subject to being stricken under the statute.’ [Citation.]” (Soukup v. Law Offices 

of Herbert Halfif (2006) 39 Cal.4th 260, 278-279 (Soukup).)

“Review of an order granting or denying a motion to strike under section 425.16 is 

de novo. [Citation.] We consider ‘the pleadings, and supporting and opposing 

affidavits . . . upon which the liability or defense is based.’ (§ 425.16, subd. (b)(2).) 

However, we neither ‘weigh credibility [nor] compare the weight of the evidence. 

Rather, [we] accept as true the evidence favorable to the [cross-complainant] [citation]

and evaluate the [cross-defendant’s] evidence only to determine if it has defeated that 

submitted by the [cross-complainant] as a matter of law.’ [Citation.]” (Soukup, supra, 39 

Cal.4th at p. 269, fn. 3.)
8

Here, it is undisputed that Tran’s statements about Margolis were “made in . . . a

public forum . . . .” (§ 425.16, subd. (e)(3).) (See Seelig v. Infinity Broadcasting Corp. 

(2002) 97 Cal.App.4th 798, 807 (Seelig) [public forum requirement satisfied where “[t]he 

offending comments arose in the context of an on-air discussion between the talk-radio 

cohosts and their on-air producer . . . .”].) The issue is whether Tran’s statements were 

made in connection with a “public issue” or “an issue of public interest” (§ 425.16, 

subds. (e)(3), (e)(4).)

The anti-SLAPP statute does not define “public issue” or “an issue of public 

interest.” (§ 425.16, subds. (e)(3), (e)(4).) “[I]t is doubtful an all-encompassing 

definition could be provided.” (Weinberg, supra, 110 Cal.App.4th at p. 1131.) In Rivero, 

the court reviewed a number of cases and concluded that the speech or conduct those 

cases addressed could be divided into three non-exclusive and sometimes overlapping 

categories. (Rivero, supra, 105 Cal.App.4th at p. 924.) The first category comprised

“statements [that] concerned a person or entity in the public eye.” (Id. at p. 924.) Cases 

in this category included Sipple v. Foundation for Nat. Progress (1999) 71 Cal.App.4th 

226 (Sipple), which involved statements about alleged spousal abuse by “a top figure in 

national politics” who had devised media strategies for major presidential and 

gubernatorial candidates. (Sipple, at p. 238.) Other cases in this category include Gilbert 

v. Sykes (2007) 147 Cal.App.4th 13 (Gilbert) and Seelig. Gilbert involved allegedly 

defamatory statements about a “‘nationally recognized’ ” plastic surgeon. (Gilbert, at 

p. 18.) Seelig involved allegedly defamatory comments about a reality show contestant 

who “voluntarily subjected herself to inevitable scrutiny and potential ridicule by the 

public and the media” when she agreed to appear on the television show Who Wants to 

Marry a Multimillionaire. (Seelig, supra, 97 Cal.App.4th at pp. 807-808.)

The second category the Rivero court described comprised “conduct that could 

directly affect a large number of people beyond the direct participants . . . .” (Rivero, 

supra, 105 Cal.App.4th at p. 924.) Cases in this category included Damon v. Ocean Hills 
9

Journalism Club (2000) 85 Cal.App.4th 468 (Damon) and Dowling v. Zimmerman (2001) 

85 Cal.App.4th 1400 (Dowling). Damon involved allegedly defamatory statements made 

at board meetings and in the newsletter of a homeowners’ association “concern[ing] the 

very manner in which this group of more than 3,000 individuals would be governed . . . .” 

(Damon, at p. 479.) Dowling involved alleged defamatory statements in a letter that 

advised the governing body of a large condominium complex about one owner’s alleged 

campaign of harassment against his tenant, which created nuisance and safety issues that 

could adversely affect the other residents of the complex. (Dowling, at pp. 1406-1408, 

1419.)

The third category the Rivero court described comprised statements on “a topic of 

widespread, public interest.” (Rivero, supra, 105 Cal.App.4th at p. 924.) The Rivero 

court put M.G. v. Time Warner, Inc. (2001) 89 Cal.App.4th 623 (M.G.) in this category. 

(Rivero, at p. 924.) M.G. was an invasion of privacy action that arose out of a media 

company’s use of a Little League team photograph to illustrate a Sports Illustrated cover 

story and an HBO broadcast on child molestation in youth sports. (M.G., at pp. 626-627.) 

The court held that the article and the broadcast were in furtherance of the media 

company’s right to free speech in connection with a public issue because the topic of both 

“was not whether a particular child was molested but rather the general topic of child 

molestation in youth sports, an issue which, like domestic violence, is significant and of 

public interest.” (M.G., at p. 629.) Other cases in this category include Gilbert, Sipple, 

and Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534 (Terry). In Gilbert, 

it was undisputed that the risks and benefits of plastic surgery were topics of widespread 

public interest and discussion. (Gilbert, supra, 147 Cal.App.4th at p. 23.) In Sipple, the 

allegedly defamatory statements involved domestic violence, “an extremely important 

public issue in our society.” (Sipple, supra, 71 Cal.App.4th at p. 238.) In Terry, the 

challenged communications involved “society’s interest in protecting minors from
10

predators, particularly in places such as church programs that are supposed to be safe.” 

(Terry, at p. 1547.) This was “clearly” a matter of public interest. (Ibid.)

The allegedly defamatory statements at issue in Rivero did not fit any of the above 

categories. Rivero was a janitorial supervisor at a public university. The university 

terminated his employment after three of the employees he supervised accused him of 

theft, extortion, and favoritism. (Rivero, supra, 105 Cal.App.4th at p. 916.) The union 

reported the termination in several of its publications. Rivero sued the union for libel and 

slander, and the union responded with a special motion to strike. (Id. at p. 917.) The trial 

court denied the motion. (Ibid.)

The Court of Appeal affirmed. (Rivero, supra, 105 Cal.App.4th at p. 918.) The 

court held that the union’s statements were not made in connection with a public issue or 

an issue of public interest. (Id. at p. 924.) The challenged statements concerned the 

supervision of a staff of eight custodians by someone who had previously received no 

public attention or media coverage. (Id. at p. 924.) The only persons directly involved in 

and affected by the situation were Rivero and the eight custodians he supervised. (Ibid.)

The court concluded that “Rivero’s supervision of those eight individuals is hardly a 

matter of public interest.” (Ibid.)

Rivero informs our analysis in this case. Tran’s statements on the radio do not fit 

any of the categories the Rivera court identified. Her appeal does not challenge the trial 

court’s determination that Margolis was not a person in the public eye. (Rivero, supra, 

105 Cal.App.4th at p. 924.) She implicitly concedes that statements about Margolis did 

not involve “conduct that could directly affect a large number of people beyond the direct 

participants,” namely, herself and Nguyen. (Ibid.) Her argument focuses on the third 

category, which involves statements on “a topic of widespread, public interest . . . .”

(Rivero, supra, 105 Cal.App.4th at p. 924.)

Tran contends that her statements involved a matter of public interest because “an 

issue is one of ‘public interest’ within the meaning of the anti-SLAPP statute if it is ‘one 
11

in which the public takes an interest.’ [Citation.]” She claims she satisfied this test by 

submitting evidence that the program’s cohosts recalled “an outpouring of callers to our 

radio program who [were] sympathetic to this woman’s plight and who wanted to help 

her.” We reject the argument. The cohosts’ declarations do not advance Tran’s position

because “[a] person cannot turn otherwise private information into a matter of public 

interest simply by communicating it to a large number of people.” (Weinberg, supra, 110 

Cal.App.4th at p. 1133.) If that were the case, any private dispute mentioned by anyone 

on a radio or television program would automatically become a matter of public interest. 

(See Rivero, supra, 105 Cal.App.4th at p. 926 [rejecting a similar argument].) As the 

Rivero court pointed out, such a result would seriously undercut “the obvious goal of the 

Legislature that the public-issue requirement have a limiting effect.” (Rivero, at p. 926.)

Tran contends that “where an individual’s circumstances exemplify a broader 

problem or concern, it is the broader subject matter that constitutes the ‘issue’ for 

purposes of the anti-SLAPP analysis, and thus determines whether speech or conduct 

implicates a matter of public interest.” She argues that the “overarching topic” of her 

comments was “the national foreclosure crisis and its human toll,” both of which are 

matters of public interest. 

There are two problems with Tran’s argument. The first is that the record does not 

support her assertion that her statements addressed broad public interest issues. The 

cohosts of the broadcast declared that Tran “in essence” stated that she “hired an attorney 

to help her process a loan modification request with the bank, but . . . the request was 

denied and her home was foreclosed.” Tran’s own version of events was that she “said I 

had sought the help of an attorney for a loan modification” and that the attorney’s office 

“represented that the attorney could help me with the loan modification.” She also told 

the radio audience “that even after [the law firm] failed to obtain the loan modification 

for us, the law office continued to tell me not to worry and that they can still help me 

keep my house. The law office continued to make these promises even though I 
12

constantly advised them I had received default and foreclosure notices from the bank and 

we were in the process of being evicted. Despite their repeated assurances, we still ended 

up with our house being foreclosed.” These statements describe Tran’s and Nguyen’s 

private dealings with Margolis, not broad issues of widespread public interest. 

The second problem with Tran’s argument is that the cases she says are “directly 

on point” do not advance her position. The speech at issue in Gilbert appeared on a Web

site created by a plastic surgery patient who was unhappy with the results of five facial 

surgeries. (Gilbert, supra, 147 Cal.App.4th at p. 19.) Her express purpose was “‘to share 

my experience’ ” and “to inform and educate because when I originally looked into 

cosmetic surgery on the Internet there was very little information from a patient[’]s 

perspective . . . .” (Ibid.) The Web site contained advice, information, a contact page for 

readers to share their experiences, and the patient’s “ruminations about plastic surgery in 

general, not all of it negative.” (Id. at p. 24.)

The surgeon who claimed the Web site defamed him did not dispute that plastic 

surgery is a subject of widespread public interest and discussion. (Gilbert, supra, 147 

Cal.App.4th at p. 23.) The court found that the Web site “contributed toward the public 

debate about plastic surgery in at least two ways: First, assertions that a prominent and 

well-respected plastic surgeon produced ‘nightmare’ results . . . contributes toward public 

discussion about the benefits and risks of plastic surgery in general . . . .” (Ibid.) Second, 

the Web site was not limited to the patient’s interactions with the surgeon. (Id. at p. 24.) 

It was “[c]learly” not limited to attacking him “but contributed to the general debate over 

the pros and cons of undergoing cosmetic surgery.” (Ibid.) This case is easily 

distinguished because Margolis is not a public figure and Tran’s comments were limited 

to attacking him. Tran’s reliance on Gilbert is misplaced.

Tran’s reliance on Terry is similarly misplaced. The allegedly false statements at

issue in that case were made in an investigative report of a church’s governing body. 

(Terry, supra, 131 Cal.App.4th at p. 1539.) The report stated that the plaintiff church 
13

youth group leaders had an inappropriate sexual relationship with a minor female church 

member. (Id. at p. 1538.) In concluding that the statements involved issues of public 

interest, the court noted that “the broad topic of the report and the meetings was the 

protection of children in church youth programs.” (Terry, at p. 1548.) Among other 

things, the report recommended updating the church’s sexual harassment policy, 

clarifying appropriate boundaries for interpersonal conduct, and involving members of 

the youth group and their parents in the selection of new youth leaders. (Id. at pp. 1547-

1548.) The report was not limited to attacking the youth group leaders. By contrast, 

Tran’s statements were limited to attacking Margolis. Terry is inapposite. 

Tran argues that her statements involved issues of public interest because Margolis 

was publicly disciplined by the State Bar for failing to timely refund Nguyen’s $3,000 

retainer and for mishandling an unrelated client’s bankruptcy matter. We disagree. Tran 

made her comments in August 2009. Margolis was disciplined by the State Bar in 

December 2011. The State Bar’s action did not retroactively transform the comments 

Tran made more than two years before into an issue of widespread public interest. 

Tran argues that her statements served a consumer protection purpose and thus 

concerned matters of public interest. We disagree. Nothing in Tran’s or anyone else’s 

account of her comments suggests that she intended to advise or warn others of 

Margolis’s alleged incompetence. (Compare Gilbert, supra, 147 Cal.App.4th at p. 19

[Web site creator’s express purpose was “to share my experience” and “to inform and 

educate . . . .”].) We agree with the trial court that it is “difficult to conceive of Tran’s 

statement on the radio as an attempt to protect or alert the public or otherwise contribute 

to a public debate; it seems she simply was commenting on the details of a private dispute 

and trying to publicly cast Margolis in a bad light.” 

We conclude that the trial court did not err in denying Tran’s special motion to 

strike Margolis’s cross-complaint on the ground that her statements did not satisfy the

“public issue” or “issue of public interest” criteria of section 425.16, subdivisions (e)(3) 
14

or (e)(4). Our conclusion makes it unnecessary for us to address whether Margolis 

demonstrated a probability of prevailing on his cross-complaint. (Dyer v. Childress 

(2007) 147 Cal.App.4th 1273, 1284.)

III. Disposition

The order is affirmed.

___________________________

Mihara, J.

WE CONCUR:

_____________________________

Elia, Acting P. J.

_____________________________

Grover, J.