Case Name: Tang, et al. v. Yuan, et al.
Case No.: 17-CV-320887

Defendant Geng He (“Defendant” or “He”) moves to strike the complaint (“Complaint”) filed by plaintiffs Baiqiao Tang and Jing Geng (collectively, “Plaintiffs”) pursuant to Code of Civil Procedure section 425.16.

Defendant He’s request for judicial notice is GRANTED IN PART. The request is GRANTED as to the Complaint and otherwise DENIED. (Evid. Code, § 452, subd. (d).)

Defendant He’s special motion to strike is DENIED. He failed to satisfy the first step of the anti-SLAPP analysis because she did not make a prima facie showing that Plaintiffs’ claims against her arise from her exercise of free speech or petition rights.

He maintains that the claims asserted against her in Plaintiffs’ Complaint are SLAPPable because her allegedly defamatory comments “relate to the actions of the Plaintiffs as public figures and as to matters of serious public interest.” (He’s Memo. Of Pts. & Auths., p. 3:2-3.) Defendant He does not specify in her motion which part of Section 425.16, subdivision (e), protects her statements, but this descriptor appears to align with the fourth category of conduct within the statute, which embraces “any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (Code Civ. Proc., § 425.16, subd. (e)(4).)

The anti-SLAPP statute does not provide a definition for “an issue of public interest,” but various guiding principles to ascertain what qualifies as a public issue have been derived from decisional authorities, including the following: (1) “public interest” does not equate with mere curiosity; (2) the matter should be something of concern to a substantial number of people; (3) there should be some degree of closeness between the challenged statements and the asserted public interest; the assertion of a broad and amorphous public interest is not sufficient; (4) 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 ….”; (5) “those charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure”; and (6) a person cannot turn otherwise private information into a matter of public interest simply by communicating it to a large number of people. (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132-1133 [internal citations omitted].) This action involves a very particular community, the Chinese dissident community, and courts have held that “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 participation in matters of public significance.” (Du Charme v. International Broth. of Elec. Workers, Local 45 (2003) 110 Cal.App.4th 107, 119 [emphasis in original].)

Here, all of He’s statements upon which the claims against her are predicated concern various attributes of Plaintiffs and acts purportedly performed by them, including arguably criminal conduct (defrauding other individuals of money). Plaintiffs characterize themselves as public figures due to their dissident status in the Chinese community and maintain that matters relating to them are therefore of serious public interest. Defendant He’s assertion that Plaintiffs are public figures and that the matters at issue in the subject statements are of public interest are not supported by any declarations or judicially noticeable material. The Court must therefore rely entirely on the allegations of the Complaint to determine if, as pleaded, Plaintiffs claims are in fact predicated on issues of public interest. The critical qualifier, as set forth above, is that in order to so qualify, He’s statements about Plaintiffs “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 participation in matters of public significance.” (Du Charme v. International Broth. of Elec. Workers, Local 45, supra, 110 Cal.App.4th at 119.) Again, this is because this action involves a very particular community and not issues that are of interest to the public at large. Defendant He, however, fails to make such a demonstration, and in fact provides the barest of analysis with regards to the first prong of the two-step anti-SLAPP test. Consequently, He has not demonstrated that the subject statements alleged to have been made by her concerned issues of public interest within the meaning of the statute. Because the first prong has not been met, the Court was not required to consider the second prong, and Defendant He’s special motion to strike is denied.

Plaintiffs’ request for attorney’s fees is DENIED. Here, there is nothing to suggest that the instant motion is frivolous or was filed by Defendant solely to cause unnecessary delay. (Code Civ. Proc., § 425.16, subd. (c).) In fact, an argument could be made that the motion failed not necessarily because of a lack of merit, but because of a total lack of relevant analysis by Defendant He. If He had addressed the Du Charme standard, perhaps she would have made a persuasive argument that Plaintiffs’ claims against her arose out of conduct within the scope of the anti-SLAPP statute. At any rate, the Court finds that there is no basis upon which to impose sanctions against Defendant for filing the instant motion.