NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
PRECEDENT IAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE

.

IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

WENTIAN YANG

, Plaintiff/Appellant

,

v.

ARIZONA CHINESE NEWS, L.L.C.; KIM UNG; JENNY UNG; SHUO

QIN ZEHN

, Defendant s /Appellee s

.

No. 1 CA

- CV 14

- 0080

Appeal from the Superior Court in Maricopa County

No. CV 2013

- 000842
The Honorable David O. Cunanan

, Judge

AFFIRMED

COUNSEL

HopkinsWay PLLC , Phoenix By Edward C. Hopkins, Jr. Counsel for Plaintiff/Appellant

Tiffany & Bosco, P

. A

. , Phoenix By William M. Fischbach
C ounsel for Defendant s

/Appellee s Arizona Chinese News and Shuo Qin Zhen

Wong Fujii Carter P

. C

. , Phoenix By Rick K. Carter, Matthew A. Klopp, Susan Larsen Counsel for Defendant s

/Appellee s Kim and Jenny UngYANG v. AZ CHINESE NEWS
Decision of the Court

2 MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Andrew W. Gould and Judge Maurice Portley joined.

T H O M P S O N, Judge :

¶1 Wentian Yang appeals from the judgment dismissing his defamation and related claims against defendants Arizona Chinese News,
L.L.C. (ACN ) and Shuo Qin Zhen

. For the reasons that follow, we affirm.

BACKGROUND

¶2 As alleged in the complaint, Yang , an international businessman, assisted the Chinese Consulate General in conducting a passport renewal event at the Chinese Cultural Center in Phoenix on November 17, 2012. Kim Ung attended the event with Wu Yi, Yang’s 95

- year

- old wheelchair

- bound aunt

, and distributed to other attendees a letter (Letter ) Ung and his wife had written. Referring to Yang, t he Letter, translated from Chinese, states :

He has seized the land in our village (Quanzhou Lichen District) in which we had in vested a large amount of funds.

He falsely claimed the communist government had

con fiscated the land, according to the policy of reclaiming
unused land that remained fall ow for years, as the reason and attempted to use horrible methods to forcibly rob the land to reach his own purpose.

Heavens, he made up the lie.

Every month he receives a large rental amoun t from it.

He is r eally a big liar and a villain.

Do not ever trust Wen Tian anymore, as a transnat ional swindler, to avoid fraud.

¶3 Ung also photographed Wu Yi at the event wearing a sign that
read:YANG v. AZ CHINESE NEWS
Decision of the Court

3 Wen Tian Yang

Lying Shamelessly

Fraud Scam

Uses Public Office for Private Gain

Oversees Chinese Sc am

¶4 Ung distributed copies of the Letter and the photograph to media sources, includ ing ACN

. ACN subsequently published an article on November 21, 2012 that contained the photograph and the tex t of the Letter ( November 21 Article ). An ACN

- edited version of the Letter (Edited Letter) also appeared in the November 21 Article. The Edited Letter state d :

He misused our land investment in Quanzhou, Fujian
Province as the reason to swindle over many years around a hundred thousand dollars from my children.

He even cheated me of my “coffin expense” savings.

Finally, Wen Tian Yang falsely claimed the local gove rnment had confiscated the land as a reason and attempted to use
horrible methods to forcibly rob our investment money.

He fabricated lies.

H e has cheated us for ten years.

He took the huge rental income for himself.

Do not ever trust Wen Tian Yang, the liar.

¶5 In a written response (Yang’s Response) that w as posted on two Chinese language websites, one of which was ACN’s, Yang challenged the November 21 Article’s veracity and the lawfulness of its publication by
ACN

. ACN published a reply to Yang’s Response on November 28, 201 2

, explaining as follows : “We re ported the contents provided. We do not know what happened prior. The reporter was not present when the incident occurred. The picture was taken in public before ma ny witnesses

. ” ( November 28 Reply)

.YANG v. AZ CHINESE NEWS
Decision of the Court

4 ¶6 Yang subsequently filed a complaint against the Ungs, ACN, and ACN’s president, Zhen (ACN and Zhen, collectively, ACN
Defendants )

. Based on the November 21 Article and the November 28 Reply, Yang sought punitive damages and asserted the following claims against the ACN Defendants : (1) defamation; (2) false light invasion of privacy; (3) tortious interference with business relations; and (4) aiding and abetting

. 1 The ACN Defendants successfully moved under Arizona Rule of
Civil Procedure 12(b)(6) (Rule 12(b)(6)) to dismiss the claims against them
that were based on the November 21 Article. According to the parties, the court dismissed the claims after finding the November 21 Article is subject
to the “ fair reporting privilege. ” 2

¶7 Upon completing discovery , the ACN Defendants moved for summary judgment on th e remaining claims . T hey raised the f ollowing
three bases for relief: (1) Yang became a “limited purpose public figure” by publish ing his Response; (2) the November 28 Reply constituted the ACN Defendants’ “subjective impression and opinion” of Yang’s Res ponse; and

, (3) the November 28 Reply is subject to the self

- interest privilege

. The court granted the motion 3 a nd entered judgment in accordance with Arizona
Rule of Civil Procedure 54(b)

. Yang appealed. We have jurisdiction pursuant to Arizona Revised Statutes sections 12

- 120.21(A)(1) (20 03 )

, - 2101(A)(1) ( Supp. 201 4 ).

DISCUSSION

I. Motion to Dismiss: Yang’s Claims re November 21 Article

¶8 Yang argues the court erred in applying the fair reporting privilege and dismissing the defamation and false light cla i ms that arose
from the November 21 Article

. Alternatively, Yang contends the ACN Defendants abused the privilege by acting with actual malice or through excessive publication.

1 Yang raised additional claims against the Ungs only.

2 The court dismissed the claims “for the reasons set forth on the
record.” The transcript from the oral argument at which the court issued its order is not in the record on appeal.

3 Again, we cannot review the court’s “on the record” reasons for granting summar y judgment because the transcript from the argument on
the motion is not in the record before us.YANG v. AZ CHINESE NEWS
Decision of the Court

5 ¶9 Dismissal under Rule 12(b)(6) is proper when “as a matter of law . . . plain tiffs would not be entitled to relief under any interpretation of the facts susceptible of proof

. ” Coleman v. City of Mesa , 230 Ariz. 352, 356, ¶ 8, 284 P.3d 863, 867 (2012) (citation omitted)

. C onsequently, we review a trial court’s 12(b)(6) dismissal d e novo. Id. Specifically, in a defamation case, the existence and scope of any privilege are questions of law that we
review de novo. Sobol v. Alarcon, 212 Ariz. 315, 317 n.2, ¶ 10, 131 P.3d 487,
489 n.2 (App. 2006)

. Our examination is limited to the pleading itself.
Cullen v. Auto

- Owners Ins. Co. , 218 Ariz. 417, 419, ¶ 7, 189 P .3d 344, 346 (2008) . We will “assume the truth of the well

- pled factual allegations and indulge all reasonable inferences therefrom.” Id. However, “mere
concl usory statements are insufficient to state a claim upon which relief can be granted.” Id.

¶10 The conditional fair reporting privilege provides immunit y for defamatory publication of “a report of . . . a meeting open to the public
that deals with a matter of public concern

. . . .” Restatement (Second) of
Torts (Restatement) § 611 (1977) ; see also Green Acres Trust v. London , 141 Ariz. 609, 618, 688 P.2d 617, 626 (1984) (applying Restatement § 611 )

. The scope of the privilege allows “ [ a ] nyone [to] describe wh at transpired at a public proceeding so long as the publisher provides a fair and accurate
rendition.” Green Acres Trust

. , 141 Ariz. at 618, 688 P.2d at 626

. Thus, abuse of the privilege occurs only when the publisher does not give a fair and accurate report of the proceeding. Restatement § 611 cmt. a. Furthermore,
“t he privilege exists even though the publisher himself does not believe the defamatory words he reports to be true and even when he knows them to
be false.” Id

.
¶11 Here, ACN’s publication of the Letter and photograph of the displayed sign in the November 21 Article falls within the fair reporting privilege. As alleged in the complaint, ACN merely published the Letter and photograph that Ung sent to the newspaper. Other members of the public that attended the passport event could learn and see for themselves
the Letter’s and sign ‘s statements ; thus, ACN was “merely a substitute for the public eye.” Green Acres Trust , 141 Ariz. at 618, 688 P.2d at 626

. Consequently, ACN’s publication of the Letter and the photograph of the sign is a “fair and accurate rendition” of the ir respective statements

. Additionally, the complaint does not allege the passport event was private or otherwise closed to the public. Indeed, the event’s title

— “Chinese Passport Renewal Event”

— indicates the event was open to all Chinese nationals seeking to renew their passports, a purpose wh ich is certainly aYANG v. AZ CHINESE NEWS
Decision of the Court

6 matter of public interest. 4 See i d. (noting, “If the proceeding is genuinely open, so that the speaker sees what any member of the public could have seen, and the meeting deals with a matter of public interest, the privilege applies.”)

.
¶12 Regarding the Edited Letter in the November 21 Article, Yang argues it is “materially different” from the Letter because it raises the following “three new allegations” not found in the Letter: (1) Yang swindled approximately $100,000; (2) Yang cheated Wu Yi out of her “coffin expenses”; and (3) Yang ch eated his family for ten years. Yang contends these differences show that the Edited Letter does not fairly and accurately
describe the events described in the Letter. We disagree.

¶13 As noted, for the fair re porting privilege to apply, the report
must be fair and accurate. Supra ¶ 10

. “Accuracy means ‘substantially correct,’ while fair means balanced.” Green Acres Trust , 141 Ariz. at 618, 688
P.2d at 626 (citation omitted) . In considering whether a report is fair and accurate, “ a court must determine whether the report of t he public proceeding carries a ‘greater sting’ in defamatory content than the original publication during the proceeding. ” Id . at 619, 688 P.2d at 627 (citation omitted)

.
¶14 Here, the Let ter and the sign worn by Wu Yi constitute the original publication. Thus, we must determine whether the Edited Letter’s defamatory content carries a “greater sting” than the Letter and sign. We agree with Yang that the Edited Letter contains allegations that are not contained in the Letter or the sign. However, the differing allegations merely provide more detail regarding instances of Yang’s alleged “fraud” and “swindling.” For example, the Edited Letter states Yang swindled approximately $100,00 0 in a ddition to Wu Yi’s saving s for coffin expenses
and that he “cheated us for ten years.” The Letter and sign generally a llege Yang is a “transnational swindler” and “a big liar and a villain” who fraudulently seized others’ land in China. We discern no “greater sting”
attributable to the detailed allegations in the Edited Letter compared to the general statements contained in the Letter and sign. Accordingly, the Edited

4 The title of the November 21 Article is: “95 year old lady sits in a wheel chair at her nephew’s location wearing the complaint to fight for justice.” C onsequently, it appears ACN considered as newsworthy not the substance of the defamatory statements, but t he fact that Yang’s aunt was publicly displaying the sign at the passport event.YANG v. AZ CHINESE NEWS
Decision of the Court

7 Letter is fair and accurate and therefore subject to the fair reporting privilege.

¶15 For the above

- stated reasons, the November 21 Article is subject to the fair reporting privilege.

¶16 We also reject Yang’s assertion that the ACN Defendants abused the fair reporting privilege because they published the November
21 Article with actual malice towards Yang and they excessively published
the article.

¶17 In an effort to establish that the ACN Defendants abused the fair reporting privilege, Yang makes a great deal of their “actual malice” in publishing the November 21 Article. However, he cites no a uthority for the proposition that a publisher’s actual malice somehow renders the fair reporting privilege inappl icable. The cases he does cite do not address what effect, if any, actual malice has on the viability of a defense based on the fair reporting privilege. See C urrier v. W. Newspapers, Inc. , 175 Ariz. 290, 293, 855 P.2d 1351, 1354 (1993) (“substantial truth” defense to defamation claim);
Green Acres Trust , 141 Ariz. at 616

- 18, 688 P.2d at 624

- 26 (discussing conditional privileges in general and noting publication with actual malice
abuses such privilege s; further noting fair reporting privilege is “special” because publisher may make knowingly false defamatory statements without abusing the privi lege); Lewis v. Oliver , 178 Ariz. 330, 335, 873 P.2d 668, 673 (App. 1993) (communications to public officials regarding the work of their subordinates is subject to conditional privilege). Absent such authority, we are not persuaded that actual malice app lies to show abuse of the special reporting privilege especially given that the privilege permits publication of informati on the publisher knows is false, which is a factor in determining actual malice in cases where other conditional privileges are

assert ed. See Heuisler v. Phoenix Newspapers, Inc. , 168 Ariz. 278, 282, 812 P.2d 1096, 1100 (App. 1991) (“Proof of actual malice requires clear and convincing evidence that the defendants published either with knowledge that the defamatory statements were false or with reckless disregard for whether the statements were true or false.”)

.
¶18 Yang contends the November 21 Article was excessively published because the ACN Defendants posted it online in addition to mailing free print copies to recipients in the United S tates and China. See
Green Acres Trust , 141 Ariz. at 616, 688 P.2d at 624 (“Once a defendant demonstrates that a conditional privilege may apply, the plaintiff may then prove an abuse of that privilege either by proving publication with ‘ actual
malice ’ or by demonstrating excessive publication.”)

. However, Yang citesYANG v. AZ CHINESE NEWS
Decision of the Court

8 no authority for his assertion that, on the facts of this case, excessive publishing negates the fair reporting priv i lege . We therefore do not
address whether the ACN Defendants abused th e fair reporting privilege
on these bases. See Cullum v. Cullum , 215 Ariz. 352, 355 n.5, ¶ 14, 160 P.3d 231, 23 4 n.5 (App. 2007) (appellate courts “will not consider argument posited without authority.”) ; ARCAP 13(a)( 7 ) (requiring appellant to present sig nificant arguments, set forth his or her position on the issues raised, and include citations to relevant authorities, statut es, and portions of the record.).

¶19 Because the fair reporting privilege applies to the November 21 Article, the court properly dismi ssed Yang’s defamation and other claims stemming from the publication of that article. See, e.g., Lakeshore Cmty. Hosp., Inc. v. Perry , 212 Mich. App. 396, 401, 538 N.W.2d 24, 27 (1995) (“As with defamation actions, where the conduct allegedly causing the business interference is a defendant’s utterance of negative statements concerning a plaintiff, privileged speech is a defense.”) ; Restatement (Second) of Torts § 652G (1977) (“The rul es on conditional privileges to publish defamatory matter . . . , and on the special privileges . . . , apply to the publication of any matter that is an invasion of privacy.”). 5

5 Regarding his claim for aiding and abetting, Yang merely alleged the following:

ACN, Mr. Zhen, Mr. Ung, and Mrs. Ung substantially helped and encouraged one another to publish false and derogatory statements about Mr. Yang to members of the parties'
communities.

ACN, Mr. Zhen, Mr. Ung, and Mrs. Ung substantially hel ped and encouraged one another to intentionally interfere with Mr. Yang's business relations.

See Wells Fargo Bank v. Arizona Laborers, Teamsters & Cement Masons Local No.
395 Pension Trust Fund , 201 Ariz. 474, 485, ¶ 34, 38 P.3d 12, 23 (2002) ( as an element of an aiding and abetting claim, plaintiff must prove defendant substantially assisted or encouraged the primary tortfeasor ). Without further factual allegations in the complaint, the above

- referenced allegations are conclusory and insufficient to survive a Rule 12(b)(6)
motion. See Cole man , 230 Ariz. at 356, ¶ 9

, 284 P.3d at 867 (“In determining if a complaint states a claim on which relief can be granted, courts mustYANG v. AZ CHINESE NEWS
Decision of the Court

9 II. Summary Judgment: ACN’s November 28 Reply

¶20 We review de novo the grant of a motion for summary judgment. Tierra Ranchos Homeowners Ass'n v. Kitchukov , 216 Ariz. 195, 199, ¶ 15, 165 P.3d 173, 177 (App. 2007) . Summary judgment is appropriate when “there is no genuine issue as to any material fact and . . . the moving party is entitl ed to a judgment as a matter of law.” Ariz. R. Civ. P. 56(c)(1)

. We will affirm a grant of summary judgment if the trial court was correct for any reason. City of Tempe v. Outdoor Sys., Inc. , 201 Ariz. 106, 111, ¶ 14, 32 P.3d 31, 36 (App. 2001)

.
¶21 Here, Yang did not dispute the ACN Defendants’ statement of facts supporting their summary judgment motion. Thus, he is constrained to challenging the legal basis of the court’s grant of summary judgment

. But the various arguments Yang raises reflect his apparent

m isapprehension regarding the content and purpose of the November 28 Reply. Our review of the November 28 Reply reveals it was published to address the allegations in Yang’s Response regarding the ACN Defendants’ purported illegal publication of the Novemb er 21 Article.

¶22 In his Response to the November 21 Article , Yang did not merely challenge the truthfulness of the defamatory comments contained
in the a rticle, he also asserted the ACN Defendants’ publication of it was unlawful. And by doing so, Yang insert ed his views into the public controversy regarding the First Amendment rights of the ACN Defendants to publish the November 21 Article. Yang thus became a “limited purpose public figure” for purposes of resolving his defamation claim against the
ACN Defen dants. See Dombey v. Phoenix Newspapers, Inc. , 150 Ariz. 476, 483, 724 P.2d 562, 569 (1986) (noting, “ An individual ma y become a public figure
if he ‘ thrust[s] himself or his views into public controversy to influence
others. ’ ” ) (quoting Hutchinson v. Proxmire, 443 U.S. 111, 135 (1979) )

.
¶23 As a public figure, Yang was required to produce evidence of the ACN Defendants’ actual malice in publishing the November 28 Reply.
See Morris v. Warner , 160 Ariz. 55, 63, 770 P.2d 359, 367 (App. 1988) . “ A
statement i s made with actual malice when the declarant makes the statement with knowledge that it was false or with reckless disregard for

assume the truth of all well

- pleaded factual allegations and indulge all

reasona ble inferences from those facts, but mere conclusory statements are insufficient.”).YANG v. AZ CHINESE NEWS
Decision of the Court

10 the truth. ” Id. Actual malice can only be sufficiently proved with clear and convincing evidence. Id.

¶24 Our review of the record reveals no evidence that the ACN Defendants published the November 28 Reply either knowing it contained false statements or with reckless disregard for its veracity. See Heuisler , 168
Ariz. at 282, 812 P.2d at 1100 (“ Proof of actu al malice requires clear and convincing evidence that the defendants published either with knowledge that the defamatory statements were false or with reckless disregard for
whether the statements were true or false. ”)

. Accordingly, the ACN
Defendants wer e entitled to summary judgment on the defamation claim.

¶25 Because the November 28 Reply amounted to protected speech, Yang’s tortious interference and false light claims also were properl y dismissed on summary judgment. See Western Technologies, Inc. v.
Sv erdrup & Parcel, Inc. , 154 Ariz. 1, 5

- 6, 739 P.2d 1318, 1322

- 23 (App. 1986) (dismissing the plaintiff’s tortious interference claims because protected speech cannot be “wrongful” as a matter of law); Godbehere v. Phoenix Newspapers, Inc. , 162 Ariz. 335, 342, 783 P.2d 781, 788 (1989) (“ As in defamation, a public official in a false light action must always show that the defendant published with knowledge of the false innuendo or with reckless disregard of the truth. ”)

. Furthermore, Yang’s claim of aiding a nd abetting Yang in connection with the November 28 Reply was properly dismissed because, although Yang presented evidence that the ACN Defendants had spoken with the Ungs, he presented no evidence that ACN substantially helped or encouraged the Ungs to de fame him. Absent evidence of this element of aiding and abetting, the claim was properly dismissed on summary judgment. See Wells Fargo Bank , 201 Ariz. at 485, ¶ 34, 38 P.3d at 23 (elements of aiding and abetting.)YANG v. AZ CHINESE NEWS
Decision of the Court

11 CONCLUSION

¶26 The superior court’s orders granting the ACN Defendants’ motion to dismiss and motion for summary judgment are affirmed.