Filed 9/28/15 Tran v. Rogers CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). Th is opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE
STATE OF CALIFORNIA

NEIL TRAN, Plaintiff and Appellant,

v. MICHAEL ROGERS et al ., Def endants and Respondents. D066364

(Super. Ct. No. 37

- 2013

- 00062758)

APPEAL from a judgment of the Superior Court of San Diego County,
Randa Trapp, Judge. Affirmed.

Neil Tran, in pro. per., for Plaintiff and Appellant. Lambert & Rogers and Mi chael Rogers, for Defendants and Respondents.2 INTRODUCTION
This is Neil Tran ' s fourth appeal in a series of lawsuits stemming from statements
Tran mad e about Lieu Minh Quang 1 in Tran ' s publication , Nang Moi , in 2002

. 2 In this case, Tran sued Quang , Micha el Rogers (Quang ' s former attorney), Doan Dung , Nguoi Viet Today News , and Tri T. Nguyen, M.D. for allegedly conspiring to continue the trial
in Tran ' s case against Quang by falsely representing that Quang was ill and to prevent Tran from presenting his ca se at trial

. Tran appeals a judgment dismissing Rogers, Nguoi Viet Today News, and Dung (collectively R espondents) after the court sustained their
demurrer to his first amended complaint (FAC) without leave to amend. The trial court
sustained the demurre r on three grounds : (1) the conduct alleged is absolutely privileged
under Civil Code 3 section 47 , subdivision (b) ; (2) the FAC is an improper collateral attack on a previous judgment ; and (3) the FAC fail s to allege a conspiracy claim.

1 Quang was sued in this case, and is sometimes referred to, as Quang Minh Lieu. Respondent s inform us this is based on linguist ic differences between English and Vietnamese regarding placement of the surname. For consistency, we refer to this individual as Quang.
2 Tran was the appellant in the following matters arising from the dispute with Quang: Quang v. Tran (Aug. 23, 2004, D041992) [nonpub. opn.]) affirmed an order denying Tran's special motion to strike under the anti

- SLAPP statute (Code Civ. Proc., § 425.16); Quang v. Tran (Oct. 10, 2007, D048346) [nonpub. opn.]) affirmed judgment for Quang; and Tran v. Quang et al. (Sept . 18, 2013, D064038), dismissed as untimely. Tran was also the appellant in a similar case, Dinh v. Tran (Sept. 27, 2004, D042139) [nonpub. opn.]) affirmed an order denying Tran's special motion to strike under the anti

SLAPP statute regarding statements in Nang Moi.
3 All further statutory references are to the Civil Code unless otherwise specified.3

On appeal, Tran co ntends the litigation privilege should not apply to this case and this action does not constitute an improper collateral attack on a previous judgment. He
also contends the court erred in sustaining the demurrer without granting him leave to
amend. We co nclude there is no merit to these contentions and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND
I n the first lawsuit, Quang v. Tran , supra , D048346 , Quang obtained a money judgment against Tran for libel , negligent infli ction of emotion al distres s , and punitive damages ba sed on false statements Tran published in Nang Moi about Quang. We
affirmed th e judgment in an unpublished opinion. In the second lawsuit, Tran v. Quang , supra , D064038 , Tran sued Quang , Dung, Nguoi Viet Today News, and othe r parties , for intentional infliction of emotional distress
and defamation

. After a jury trial, Quang, Dung, and Nguoi Viet Today News obtained a defense judgment against Tran. Tran unsuccessfully moved for a new trial and failed to timely appeal the jud gment

. In this third lawsuit, Tran sued R espondents for conspiracy, fraud, unfair business practice, and intentional and negligent infliction of emotional distress

. 4 Tran ' s FAC allege s R espondents conspir ed with Tran ' s former attorney during the Tran v

. Quang , supra , D064038 case : (1) to induce the court to continue the trial for three months by allegedly falsely representing Quang suffered a heart attack and was too ill to proceed

4 Tran amended his original complaint prior to service. Therefore, the FAC is the operative complaint.4

with trial as scheduled ; (2) to deny Tran ' s request for Quang to produce medical records ; (3) to use Tran ' s translator for Quang during trial without reimbursing Tran; and (4) to prevent Tran from calling witnesses (allegedly falsely representing a witness had been murdered) and presenting evidence of damage to his reputation

. 5 Tran contends the
R espondents made false representations and conspired to deny him the opportunity to fairly present his defamation case. Respondents demurred to the FAC contending its allegations a re barred by section
47 , subdivision (b) ' s litigation pr ivilege and by section 1714.10 ' s procedural requirements
for filing a civil conspiracy action against an attorney . Additionally, R espondents
contended this lawsuit is an impermissible counterattack on the prior adverse judgment against Tran

. In oppositio n, Tran argued section 47 , subdivision (b) i s inapplicable to his allegations and requested leave to amend. The court sustained the demurrer without leave to amend on the grounds the FAC concerned absolutely privileged conduct under section 47 , subdivisi on (b), it constitute s an improper collateral attack on a previous judgment, and it fail s to allege a conspiracy
claim because it does not allege a wrongful act to support a conspiracy

. The court denied leave to amend stating it did not appear Tran could state a cause of action.

5 Tran apparently has a separate lawsuit pending against his former attorney arising from the Tran v. Quang case. ( Tran v. Kanter ( S uper. Ct. San Diego County, 2013, No. 37

- 2013

- 0053420

- CU

- PN

- CTL).)5 DISCUSSION
I
Demurrer

" A demurrer tests the legal sufficiency of the complaint. [Citation.] Therefore, w e review the [FAC] de novo to determine whether it contains sufficient facts to state a
cause of action. [Citation.] ' We t reat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. ' " ( Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 78; see Flannery v. VW Credit,
Inc

. (2014) 232 Cal.App.4th 606, 613.)
We conclud e the court properly sustained R espondents ' demurrer because a ll of
Tran ' s allegations and causes of action concern absolutely privileged conduct. " The litigation privilege, codified at ... s ection 47, subdivision (b), provides that a ' publication
or broadcast ' made as part of a ' judicial proceeding ' is privileged. This privilege is absolute in nature, applying ' to all publications, irrespective of their maliciousness. ' [Citation.]

... The privilege ' is not limited to statements made dur ing a trial or other proceedings, but may extend to steps take n prior thereto, or afterwards. ' " ( Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241.) The purpose of the litigation privilege is to afford " ' the utmost freed om of access to the courts without fear of being harassed subsequently by derivative tort actions

. ' " ( Ibid. )

" ' [T]he privilege is " an ' absolute ' privilege, and it bars all tort causes of action except a claim of malicious prosecution

. " [Citation.] The litigation privilege has been6

applied in " numerous cases " involving " fraudulent communication or perjured testimony. " ' " ( Kenne v. Stennis (2014) 230 Cal.App.4th 953, 965, italic s omitted .)
Tran ' s allegations all concern communications during the Tra n v. Quang , supra , D064038 judicial proceeding. Tran alleges R espondents and Tran ' s former attorney
made statements to the c ourt concerning Quang ' s health and the availability of witnesses. Tran alleges Rogers used Tran ' s translator for Quang during tria l. Tran alleges the
R espondents, along with Tran ' s former attorney, " acted in concert

... to conclude the case after the first day of trial, " which he alleges prevented him from presenting evidence of damage. Each of these communicative acts made during th e course of litigation fall s within section 47 , subdivision (b) ' s purview. Tran contends the litigation privilege should not apply in this case because he believes the conduct alleged amounts to perjury. It is true the litigation privilege does not appl y to prevent criminal prosecution for perjury or subornation of perjury. ( Action Apartment Assn., Inc. v. City of Santa Monica , supra , 41 Cal.4th at p. 1246 .) However, it
is well established the litigation privilege applies to civil actions based on perj ury or other
fraudulent communications. ( Flatley v. Mauro (2006) 39 Cal.4th 299, 322 .) The Supreme Court has explained , " ' " [t] he resulting lack of any really effective civil remedy against perjurers is simply part of the price that is paid for witnesse s who are free from7

intimidation by the possibility of civil liability for what they say. " ' " ( Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 956.) 6 Additionally, the FAC is an impermissible collateral attack on the adverse judgment Tran received in his prior lawsuit. Although Tran does not explicitly seek to reverse or set aside that judgment, he seeks damages for fraud he alleges Respondents committed during trial. Even assuming Tran ' s allegations to be true, such an attack on
intrinsic fraud b y way of a subsequent lawsuit is improper. ( Mullen v. Dep 't of Real
Estate (1988) 204 Cal.App.3d 295, 301 [ " [W]here the fraud was committed within the
trial there can be no relief. ' [I]t is settled beyond controversy that a decree will not be
vacated mer ely because it was obtained by forged documents or perjured testimony. ' " ].) Therefore, Tran ' s causes of action are barred and the trial court correctly sustained the
demurrer to the FAC.
II
Leave to Amend
Tran also contends the court abused its discreti on in denying him leave to amend.

" The trial court exercises its discretion in declining to grant leave to amend. [Citation.] If it is reasonably possible the pleading can be cured by amendment, the trial court abuses its discretion by not granting leav e to amend

. " ( Grinzi v. San Diego Hospice Corp.

6 Tran's reliance on Flatley v. Mauro , supra , 39 Cal.4th 299 is misplaced. In that case, the court dis cussed the litigation privilege, recognizing its broad application even to fraudulent or perjured statements. ( Id . at p. 322.) It held, however, the anti

- SLAPP statute, which is substantively different from section 47, did not apply to criminal extortion because such conduct is not constitutionally protected speech. ( Id . at pp. 328, 333.)8

(2004) 120 Cal.App.4th 72, 78.) Tran " has the burden of proving the possibility of cure by amendment. " ( Ibid. )
In opposing R espondents ' demurer, Tran claimed he could plead more facts about
the motivatio ns for R espondents ' actions , but did not specify how such facts would cure the pleading defects or overcome the litigation privilege or the bar against a collateral attack on a prior judgment

. Tran c ontends we should grant leave to amend because he is re presenting himself.
Tran also contends because he is not an attorney he should have an opportunity on remand to file a petition under section 1714.10 to permit him to state a claim for civil conspiracy against attorney Rogers, who properly raised this fai lure as a de fense in Respondents ' demurrer. (§ 1714.10, subds. (a), (b); Berg & Berg Enterprises, LLC v. Sherwood Partners, Inc. (2005) 131 Cal.App.4th 802, 815.) A self

- represented litigant

must " ' be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. [Citation.] ' [Citation.] Thus , as is the case with attorneys, pro

. per
. litigants must follow correct rules of procedure. " ( Nwosu v.
Uba (2004) 122 Cal.App.4th 1229, 1247.) Tran ha s not met his burden of demonstrating
how he could cure the FAC ' s fatal deficiencies or how he could avoid the application of
section 1714.10

. Accordingly, the court did not abuse its discretion by denying Tran
leave to amend.9 DISPOSITION The judgment is affirmed. The R espondents shall recover their costs on appeal.

McCONNELL, P. J.
WE CONCUR:

AARON, J.

PRAGER, J. *

* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.