Case Name: Tang, et al. v. Yuan, et al.
Case No.: 17CV320887

Defendant Ye Fan (“Defendant” or Ye Fan) demurs to the complaint (“Complaint”) filed by plaintiffs Baiqiao Tang (“Tang”) and Jing Geng (“Geng”) (collectively, “Plaintiffs”).

I. Factual and Procedural Background

This is an action for defamation and harassment arising out of online comments made relating to a Chinese dissident. According to the allegations of the operative complaint (“Complaint”), plaintiff Baiqiao Tang (“Tang”) is a Chinese dissident who spent 18 months in jail for his participation in the student movement that was ultimately suppressed in Tianamen Square in Beijing in 1989. (Complaint, ¶ 6.) After several additional years of house arrest, Tang was released and granted asylum in the United States in 1992. (Id.) Tang has continued to work for human rights and social and political reform in China since he became a U.S. citizen, for which the Chinese government has hired agents to harass, threaten and impede Tang and his efforts. (Id.)

Tang and his former wife helped defendant He Geng (“Defendant” or “He”) and her family immigrate to the United States in 2009. (Complaint, ¶ 7.) In 2015, plaintiff Jing Geng (“Geng”), who married Tang in 2015, assisted He in establishing a profitable Airbnb business. (Id.) In July 2015, He told Geng that Tang had poisoned and killed someone in New York and that she should be careful with all of her food while living with him. (Id., ¶ 8.) She further asserted that Tang had defrauded several people in the past. (Id.) In December 2015, Xiaodong Liu wrote a “public article” which stated that “Jing Geng abused He Geng.” (Id.) Defendant He refused to renounce the accusation. (Id.)

In July 2017, Boxun News hosted a conference in which defendant Jianbin Yuan (“Yuan”) stated that Geng had a CIA background and that he received a death threat during his investigation of Tang and Geng (collectively, “Plaintiffs”). (Complaint, ¶ 9.) Yuan went on to allege that: Plaintiffs were spies for the Chinese government, they owed various properties given to them by the Chinese government, they defrauded numerous people of money, they stole donation money from He, they poisoned and killed Dyong Li, Tang was a rapist and domestic abuser, Geng had been married six times, Geng abused her own daughter and Geng was dying from cancer. (Complaint, ¶ 9.)

On August 7, 2017, Boxun News published an article by He entitled: “Baiquo Tang, Stolen [sic] Seventy Thousand Donation Money that was entitled to Zhisheng Gao’s Family.” (Complaint, ¶ 10.) The allegations of the article spread within a matter of hours, and Plaintiffs started to receive numerous angry messages. (Id.) A few months later, in October 2017, Plaintiffs received a death threat as a result of the allegations. (Id., ¶ 14.) Defendant He refused to retract the article and in a subsequent interview with Boxun News, reasserted that the contents of the article were true. (Id.)
On August 23, 2017, He and her daughter publicly retweeted and supported tweets by Yaoqing Wang that stated: “Baiqiao Tang had once gotten mad at Gao’s family because He Geng refused to let Baiqiao Tang hijack and fraud their donation money. 2. Baiqiao Tang refused to let her son eat food during their stay in Tang’s home and starved the child. 3. Grace Gao read Baiqiao Tang’s phone message and found Baiqiao Tang had romantic conversation with another female person (behind his ex-wife).” (Complaint, ¶ 11.)

On November 19, 2017, defendant Jianbin Yuan (“Yuan”) spoke with four men who called him “boss” in a conversation that was streamed live. (Complaint, ¶ 16.) Yuan provided the men with Tang’s address and the men were recorded stating their intention to kidnap Tang for ransom. (Id.) The men were ultimately arrested and detained by the Palo Alto Police Department. (Id.)

Based on the foregoing, Plaintiffs filed the Complaint on December 21, 2017 asserting the following causes of action: (1) slander per se (against all defendants); (2) defamation (against all defendants); and (3) harassment (against all defendants).

On May 9, 2018, defendant Ye Fan filed the instant demurrer to the first and second causes of action in the Complaint. Plaintiffs oppose the motion.

II. Ye Fan’s Demurrer

As an initial procedural matter, the Court notes that Ye Fan did not file a declaration reflecting that he met and conferred with Plaintiffs prior to filing the demurrer as required by Code of Civil Procedure section 430.41, subdivision (a)(3). Pursuant to Code of Civil Procedure section 430.41, subdivision (a), “[b]efore filing a demurrer [ ], the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” “As part of the meet and confer process, the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies.” (Code Civ. Proc., § 430.41, subd. (a)(1).)

Here, no declaration was filed and Plaintiffs maintain in their opposition that no meet and confer ever took place between themselves and Ye Fan prior to his filing the instant motion. Despite this non-compliance, the Court will address the substantive merits of Ye Fan’s motion, as it is not permitted to overrule a demurrer based solely on a defendant’s failure to comply with Code of Civil Procedure section 430.41 (see Code Civ. Proc., § 430.41, subd. (a)(4)) and desires to promote judicial economy. Defendant is admonished to comply with Code of Civil Procedure section 430.41 where applicable in the future.

Turning to the substance of the demurrer, according to the notice of motion, Ye Fan is demurring to the first and second causes of action in the Complaint pursuant to Code of Civil Procedure section 1170 (“Section 1170”). A demurrer can be taken only on the grounds specified in the Code of Civil Procedure; Section 1170 is not one such ground and merely provides that “[o]n or before the day fixed for his appearance, the defendant may appear and answer or demur.” However, Ye Fan does state in his notice of motion that he is demurring to the first and second causes of action on the grounds that the complaint does not state sufficient facts to constitute a cause of action and he is not a proper party. Consequently, it appears to the Court that Ye Fan’s intention is to demur on two grounds specified in the Code: the failure to state facts sufficient to constitute a cause of action and nonjoinder or misjoinder of parties. (Code Civ. Proc., § 430.10, subds. (d) and (e).) The Court will interpret the demurrer in this vein.

Ye Fan maintains that no claim has been stated against him for slander per se and defamation, the first and second causes of action, respectively, because there is no mention of him in the Complaint other than on the title page where he is listed as a defendant. Thus, he is not alleged to have committed any wrongful conduct against Plaintiffs. Seemingly recognizing that this is the case, Plaintiffs make it clear in their opposition that they do not oppose Ye Fan’s demurrer against these claims. Plaintiffs spend the remainder of their opposition discussing the third cause of action for harassment as it relates to Ye Fan, but he has not demurred to that claim and thus it is not at issue on this motion.

Because there are no facts pleaded in the Complaint regarding slander or defamation committed by Ye Fan, the Court finds that the Complaint fails to plead sufficient facts to state such claims against him. However, there is no basis to sustain the demurrer based on misjoinder of parties despite Plaintiffs’ nonopposition to it; this ground may be sustained only where it appears from the face of the pleading under attack that there is no common question of law or fact as to the defendants. (Code Civ. Proc., §§ 378, 379 and 430.10, subd. (d).) It does not so appear here. Consequently, Ye Fan’s demurrer to the first and second causes of action on the ground of misjoinder of parties is OVERRULED, while the demurrer to these claims on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.