Case Name: Jin v. Li
Case No.: 19CV344983

This is an action for defamation. In 2018, plaintiff Jigang Jin (“Plaintiff”) served as the executive vice president of the Jiaotong University Alumni Association of Northern California (“Alumni Association”), and in 2019, Plaintiff was the president. (Complaint, ¶ 3.) Defendant Fuzu Li (“Defendant”) was the vice president of the Alumni Association in 2018. (See complaint, ¶ 4.) On February 6, 2018, Plaintiff, Defendant and the 2018 Alumni Association president, agreed that it was beneficial for the Alumni Association to become a formal California non-profit organization and apply for tax exemption status under Section 501(c)(3) of the Internal Revenue Code. (See complaint, ¶ 5.) Plaintiff was tasked with preparing and filing the necessary papers for becoming a formal California non-profit organization and applying for tax exempt status. (See complaint, ¶ 6.) On March 27, 2018, Plaintiff filed articles of incorporation of a nonprofit public benefit corporation with the California Secretary of State. (See complaint, ¶ 7.) On June 25, 2018, Plaintiff filed a Statement of Information with the California Secretary of State. (See complaint, ¶ 8.) On November 29, 2018, Plaintiff filed a Streamlined Application for Recognition of Exemption under Section 501(c)(3) of the Internal Revenue Code, which required the disclosure of names, titles and mailing addresses of the officers and directors of the organization—which included Defendant. (See complaint, ¶ 11.) At a March 16, 2019 meeting, Plaintiff—who was now the president of the Alumni Association—organized a meeting to vote an amendment proposal for the bylaws at a Starbucks coffee shop in Sunnyvale. (See complaint, ¶ 13.) At this meeting, Defendant heard that he was listed on the Alumni Association’s registration/application papers. (See complaint, ¶ 14.) Defendant threw a glass on the ground, startling others and yelled that Plaintiff had used his personal information without notifying him and sold him out. (See complaint, ¶ 14.) Defendant also yelled that Plaintiff had raped Defendant. (Id.) That day, Defendant also posted an instant message in a WeChat discussion group for members of the Alumni Association accusing Plaintiff of: raping Defendant, using Defendant’s personal information without informing him, committing fraud and secretly forming a nonprofit organization. (See complaint, ¶ 16.) Over the rest of the day, Defendant continued to falsely accuse Plaintiff of the former complaints and additionally accused Plaintiff of stealing Defendant’s social security number and driver’s license number and committing perjury. (See complaint, ¶¶ 17-22.) On March 20, 2019, Plaintiff filed a complaint against Defendant, asserting causes of action for:

1) Defamation—libel;
2) Defamation—libel per se; and,
3) False light.

Defendant specially moves to strike the complaint pursuant to Code of Civil Procedure section 425.16.

Defendants’ special motion to strike pursuant to Code of Civil Procedure section 425.16

In Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, the California Supreme Court established the trial court’s duty in ruling on an anti-SLAPP motion to strike:

Section 425.16, subdivision (b)(1) requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains were taken ‘in furtherance of the [defendant]’s right of petition or free speech under the United States or California Constitution in connection with a public issue,’ as defined in the statute. [Citation.] If the court finds [that defendant has made its threshold showing], it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’

(Id. at 67.)

“[I]n order to establish the requisite probability of prevailing [citation], the plaintiff need only have ‘stated and substantiated a legally sufficient claim.’” (Navellier v. Sletten (2002) 29 Cal. 4th 82, 88, quoting Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal. 4th 1106, 1123.) “Put another way, the plaintiff ‘must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.’” (Id. at 88-89, quoting Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) “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.” (Id. at 89.) “In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim.” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.)

The Court did not consider the evidence submitted by Defendant on reply.

In reply, Defendant files a reply declaration. However, the Court does not generally consider evidence submitted for the first time in reply because of due process concerns. (See San Diego Watercrafts, Inc. v. Wells Fargo Bank N.A. (2002) 102 Cal.App.4th 308, 316 (stating that due process requires a party be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail); see also Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 (stating that evidence submitted in reply is not generally allowed).)

Defendant fails to make a threshold showing that the complaint arises from protected activity

Defendant asserts that each of the causes of action of the complaint arise from protected activity because they are protected by the litigation privilege. (See Def.’s memorandum of points and authorities in support of special motion to strike complaint (“Def.’s memo”), pp.6:23-28, 7:1-28, 8:1-7.) Defendant asserts that “in the very WeChat message that presumably forms the basis of Plaintiff’s claim, Defendant specifically stated to Plaintiff (emphasis added), ‘Jin Jijang, you use my information without my consent, it is illegal, and the consequences are invalid. I reserve the right to sue you!” (Id. at p.7:23-25.) Defendant argues that “[b]ecause Defendant’s statements anticipated litigation and arose in the context of litigation-related activities, Plaintiff’s claims arises out of protected activity and is therefore subject to the anti-SLAPP statute.” (Id. at p.8:1-7.) In support of his argument, Defendant attaches his own declaration in which he states that he “was angry that my name—and, I believed at the time, my personal information such as my social security number and California’s driver’s license number—had been used without my knowledge or permission…. wrote on WeChat to express [his] displeasure with plaintiff… [saying that he] felt nauseated (‘like having swallow a fly’), violated (that I had ben ‘raped’ by Plaintiff), and used (‘as a monkey’)… told Plaintiff (emphasis added, ‘Jin Jijang, you use my information without my consent, it is illegal, and the consequences are invalid. I reserve the right to sue you!’… [and, his] comments were made in the heat of the debate over the status of the Association and its leadership, having just found out that I had been included among the list of officers and directors without my knowledge or consent.” (Li decl., ¶¶ 16, 17, 26.) Defendant also states that he is “still contemplating legal action against Plaintiff, even though after he found out that Plaintiff had filed the instant lawsuit, he consulted with his current attorney who “discouraged [Plaintiff] from… suing Plaintiff.” (Id. at ¶¶ 17, 24.)

Defendant is correct that the litigation privilege attaches to prelitigation communications. However, “the privilege protects only prelitigation communications having some relation to an anticipated lawsuit.” (A.F. Brown Electrical Contractor, Inc. v. Rhino Electric Supply, Inc. (2006) 137 Cal.App.4th 1118, 1128.) “In California, the courts have held a prelitigation statement is protected by the litigation privilege of section 47, subdivision (b) when the statement is made in connection with a proposed litigation that is ‘contemplated in good faith and under serious consideration.” (Id., quoting Aronson v. Kinsella (1997) 58 Cal.App.4th 254, 266.) “‘In other words, the prelitigation statements must ‘‘have some connection or logical relation to the action.’” (Id.) In A.F. Brown, supra, the defendants asserted that stop notices—a part of the California lien law scheme—were protected by the litigation privilege as they informed the plaintiff that it would issue the stop notices and pursue all legal remedies. (Id.) However, the A.F. Brown court stated that “[t]his threat of potential legal action is insufficient, however, to demonstrate a lawsuit was under serious consideration… [and b]ecause defendants failed to establish that a lawsuit was under serious consideration, they failed to demonstrate the litigation privilege covered the challenged communications.” (Id.) Additionally, as cited by Plaintiff, in Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359, the court stated that “[t]his rationale for the privilege cannot logically be extended to communications made prior to or in anticipation of litigation until the prospect of litigation has gone from being a mere possibility to becoming a contemplated reality… [and] the litigation privilege only attaches when imminent access to the courts is seriously proposed and actually contemplated, seriously and in good faith, as a means of resolving a dispute and not simply a tactical ploy to induce a settlement.” (Id. at pp.1378-1379; see also Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 34-36 (discussing litigation privilege, stating that “a lawsuit or some other form of proceeding must actually be suggested or proposed, orally or in writing… even a threat to file a lawsuit would be insufficient to activate the privilege if the threat is merely a negotiating tactic and not a serious proposal made in good faith contemplation of going to court… an offhand suggestion a given claim or dispute might result in a lawsuit would be insufficient to invoke the privilege… [u]nless and until the parties are negotiating under the actual threat of impending litigation, the original justification for the litigation privilege of encouraging access to the courts can have no relevance to their communications… the litigation must be proposed in order to obtain access to the courts for the purpose of resolving the dispute… [t]he critical point of each of these four elements is that the mere potential or ‘bare possibility’ that judicial proceedings ‘might be instituted’ in the future is insufficient to invoke the litigation privilege”); see also
Kettler v. Gould (2018) 22 Cal.App.5th 593, 610 (affirming denial of anti-SLAPP motion, stating that “the communications at issue did not suggest or propose litigation… [i]n order to take advantage of the litigation privilege, respondents must establish that … they … seriously and in good faith proposed imminent access to the courts as a means of resolving their dispute”).)

Here, Defendant does not demonstrate that the statements were made in anticipation of litigation or to investigate the feasibility of filing a lawsuit. In fact, Defendant states in his declaration that his “comments were made in the heat of debate” and out of “ang[er] that [his] name… had been used without [his] knowledge or permission.” Defendant does not demonstrate that the statements were made as a means of resolving a dispute when Defendant was seriously proposing and contemplating litigation in good faith. Defendant merely stated that he reserved the right to sue; he did not suggest or propose such litigation. Moreover, Defendant’s evidence only addresses the alleged statements made in WeChat; it does not address the accusations made during the March 16, 2019 meeting at Starbucks. Defendant fails to make a threshold showing that the challenged cause of actions arise from protected activity.

Even if Defendant had demonstrated that the challenged cause of actions arise from protected activity, Defendant also fails to demonstrate that the statements were made in a public forum in connection with an issue of public interest

Defendant also argues that the statements were made in a public forum in connection with an issue of public interest because “postings on the internet are broadly construed as statements made in a public forum… [and although] Plaintiff was not a person in the public eye… Defendant’s statements did potentially directly affect a large number of people beyond the direct participants, and they did involve a topic of widespread public interest… [as] the integrity of the self-governance of non-profits has long been considered a matter of public interest. (See Def.’s memo, pp.8:8-28, 9:1-25, 10:1-12.)

Defendant asserts that because the legislature has established a whole set of laws regarding the self-governance of non-profits, the integrity of the self-governance has long been considered a matter of public interest. (See Def.’s memo, p.9:3-10.) Defendant cites to Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, and
Braude v. Automobile Club of Southern Cal. (1986) 178 Cal.App.3d 994. However, neither of those cases involves a special motion to strike, much less a determination as to whether an issue is a matter of public interest. Defendant also cites to Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, but the court there stated that “[t]he definition of ‘public interest’ within the meaning of the anti-SLAPP statute has been broadly construed to include not only governmental matters, but also private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity.” (Id. at p.115 (also stating that “[a]lthough matters of public interest include legislative and governmental activities, they may also include activities that involve private persons and entities, especially when a large, powerful organization may impact the lives of many individuals”).) However, in Du Charme, the court held that “in cases where the issue is not of interest to the public at large, but rather to a limited, but definable portion of the public (a private group, organization, or community), the constitutionally protected activity must, at a minimum, occur in the context of an ongoing controversy, dispute or discussion, such that it warrants protection by a statute that embodies the public policy of encouraging participation in matters of public significance.” (Id. at p.119.) Here, the ongoing controversy was that Defendant “was angry that [his] name… had been used without [his] knowledge or permission.” Defendant also relies on Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450; however, there the court stated that “safety in youth sports, not to mention problem coaches/problem parents in youth sports, is another issue of public interest within the SLAPP law.” (Id. at p.468.) The instant matter does not involve safety in youth sports; Hecimovich is inapposite. This does not appear to be an ongoing controversy, dispute or discussion such that it warrants protection by a statute that embodies the public policy of encouraging participation in matters of public significance. (See Rivero v. American Federation of State, County, and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 924 (stating that statements that received no media coverage or public attention and only involved manager and eight individuals supervised by manager “is hardly a matter of public interest”).) Defendant also fails to demonstrate that the alleged statements concern an issue of public interest.

Finally, Defendant argues that the WeChat group is a public forum akin to posting comments on newsgroups, citing Barrett v. Rosenthal (2006) 40 Cal.4th 33. In Barrett, the court stated that “[w]eb sites accessible to the public, like the ‘newsgroups’ where Rosenthal posted Bolen’s statement, are ‘public forums’ for purposes of the anti-SLAPP statute.” (Id. at p.41, fn.4.) However, Defendant does not demonstrate that the WeChat group is a website accessible to the public. Instead, Defendant’s declaration states that “WeChat is a widely used Chinese multi-purpose messaging and social media app… and that “there was a discussion in an Association WeChat group titled Bylaw Amendment Group, of which I was a member.” (Li decl., ¶ 11, fn. 1.) Here, the evidence presented by Defendant actually suggests that the forum was not public but rather required membership. Defendant also fails to demonstrate that the alleged statements were made in a public forum.

Accordingly, Defendant fails to meet its initial burden and it is unnecessary to determine whether the plaintiff has demonstrated a probability of prevailing on the claim. Defendant’s special motion to strike pursuant to Code of Civil Procedure section 425.16 and accompanying request for attorney’s fees are DENIED.

The Court will prepare the Order.