Hao Chen vs Zhipeng Lu

9:00 21CV3900666 Eric Hartman et.al. vs Defendant moves this court to award attorney fees and costs. Defendant was the 10 Koshy George prevailing party. Defendant’s motion is GRANTED. Court seeks oral argument regarding amount of sanctions.

9:01 22CV397160 John Lam, et.al. vs Plaintiff’s attorney moves to withdraw as counsel. There is no opposition filed. 1 The Signature Plaintiff’s attorney’s motion is GRANTED. Motors, LLC

9:01 23CV423813 Absolute Resolutions Defendant moves this court for exemption from wage garnishment. No opposition 2 Investments, LLC vs was filed. Defendant claims that he needs all of his income to support his spouse Azim Uddin and his son. This court agrees. Defendant’s motion is GRANTED.

Accordingly, James’ motion for leave to file the XC is GRANTED. James shall file his proposed XC within 10 days of this Order.

Additionally, James shall prepare and submit a proposed final order consistent with this tentative ruling.

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Case Name: Hao Chen v. Zhipeng Lu Case No.: 25CV481161

Plaintiff Hao Chen (“Chen”) filed this action against defendant Zhipeng (aka Nathan) Lu (“Lu”). Lu now brings a special motion to strike under Code of Civil Procedure section 425.16.

I. SPECIAL MOTION TO STRIKE

A. General Legal Standards

Code of Civil Procedure section 425.16 authorizes a person to bring a special motion to strike allegations “arising from any act . . . in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.” (Code Civ. Proc., § 425.16, subd. (b)(1).) This is commonly referred to as an “anti-SLAPP” motion.

Courts evaluate anti-SLAPP motions using a two-step analysis. (Country Side Villas Homeowners Assn. v. Ivie (2011) 193 Cal.App.4th 1110, 1116.) “First, the moving defendant must identify ‘all allegations of protected activity’ and show that the challenged claim arises from that activity. [Citations.]” (Bel Air Internet, LLC v. Morales (2018) 20 Cal.App.5th 924, 934.) “Second, if the defendant makes such a showing, the ‘burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated.’ [Citation.] Without resolving evidentiary conflicts, the court determines ‘whether the plaintiff’s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment.’ [Citation.]” (Ibid.)

B. First Step: Protected Activity

1. Legal Standards

“A defendant meets his or her burden on the first step of the anti-SLAPP analysis by demonstrating the acts underlying the plaintiff’s cause of action fall within one of the four categories spelled out in [Code of Civil Procedure] section 425.16, subdivision (e). [Citations.]” (Collier v. Harris (2015) 240 Cal.App.4th 41, 50-51.) Examples of protected speech include:

(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) 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).) “In deciding whether the ‘arising from’ requirement is met, a court considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ [Citations.]” (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 670.) “At the first step [of an anti-SLAPP analysis], the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them.” (Baral v.

Schnitt (2016) 1 Cal.5th 376, 396 (Baral).) Lu’s anti- SLAPP motion seeks to strike each of the four causes of action alleged in the complaint. Here, Lu notes that in “September 2025, Lu posted a short video on a social media platform (identified as ‘RedNote’) in which he discussed Chen’s business conduct and Chen’s use of government pandemic relief funds. The video addressed Lu’s perspective regarding their business dealings and his concerns about those issues. Chen thereafter filed this action asserting causes of action for libel, slander, false light, and intentional infliction of emotional distress, all arising from the same alleged statements.” (Memorandum of Points and Authorities in Support of Anti-SLAPP Motion (“MPA”), p. 3:20-26.)

The court agrees with Lu that the four of the causes of action alleged in the complaint all arise from the same allegedly defamatory statements. (See Complaint, ¶¶ 26-46.)

In opposition, Chen argues that Lu’s anti-SLAPP motion fails because Lu failed to “submit a record of his RedNote post, and in failing to do so, also fails to meet his burden to establish that his post was protected speech as a matter of law.” (Opposition to Anti-SLAPP Motion (“Opposition”), p. 6:6-8.) Chen cites no legal authority in support of this argument, and the court is not persuaded otherwise. A “moving party may rely on the plaintiff’s allegations alone in making the showing necessary under prong one without submitting supporting evidence.” (Supershuttle International, Inc. v. Labor & Workforce Development Agency (2019) 40 Cal.App.5th 1058, 1065, internal citation and quotation marks omitted.)

The court turns to the parties’ remaining arguments. Lu argues that the speech alleged in the complaint constitutes protected speech under Code of Civil Procedure section 425.16, subdivisions (e)(3) and (e)(4). (MPA, p. 6:8-10.) The court agrees.

Code of Civil Procedure section 425.16, subdivision (e)(3) defines protected activity as including “any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.” (Code Civ. Proc., § 425.16, subd. (e)(3).) “A ‘public forum’ is traditionally defined as a place that is open to the public where information is freely exchanged.” (Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 475, internal citation omitted.) “Under its plain meaning, a public forum is not limited to a physical setting, but also includes other forms of public communication.” (Id. at p. 476, internal citation omitted.)

The court agrees with Lu that the statements were made in a public forum. (MPA, p. 5:14-24.) The complaint alleges that Lu posted a short video on “RedNote,” a social media website with 143 million daily active users worldwide. (Complaint, ¶¶ 21- 22.) Moreover, a declaration submitted by Lu states that Lu posted a video on RedNote that “was available to the public and was not limited to a private group, private account, or restricted audience.” (Declaration of Zhipeng (aka Nathan) Lu in Support of Special Motion to Strike, ¶ 6 (“Lu Declaration” or “Lu Decl.”).) “Web sites that are accessible free of charge to any member of the public where members of the public may read the views and information posted, and post their own opinions, meet the definition of a public forum for purposes of section 425.16.” (Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569, 1576, internal citation omitted.)

However, “not every Web site post involves an issue of public interest. Mere publication on a Web site does not turn otherwise private information into a matter of public interest. [Citation.] Thus, the remaining question is whether these statements were made in connection with an issue of public interest.” (Greiner v. Taylor (2015) 234 Cal.App.4th 471, 481 (Greiner).)

Code of Civil Procedure section 425.16 “does not define ‘an issue of public interest.’ Nevertheless, the statute requires the issue to include attributes that make it one of public, rather than merely private, interest. [Citation.] A few guiding principles can be gleaned from decisional authorities. For example, ‘public interest’ is not mere curiosity. Further, the matter should be something of concern to a substantial number of people. Accordingly, a matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest.

Additionally, there should be a degree of closeness between the challenged statements and the asserted public interest. The assertion of a broad and amorphous public interest that can be connected to the specific dispute is not sufficient.” (Greiner, supra, 234 Cal.App.4th at pp. 481-482, internal citations omitted.) Also, “the term has been broadly construed to include private conduct that impacts a broad segment of society or that affects a community in a manner similar to that of a governmental entity.” (Id. at p. 482, internal citation omitted.)

Thus, the “precise boundaries of an issue of ‘public interest’ have not been defined. Nevertheless, in each case where it was determined that an issue of public interest existed, the subject statements either concerned a person or entity in the public eye, conduct that could directly affect a large number of people beyond the direct participants or a topic of widespread, public interest.” (Ibid., internal citations and quotation marks omitted.)

The court agrees with Lu that the alleged statements concern an issue of public interest. Here, the alleged statement concerns a social media post made on RedNote, alleged to be a “social media app . . . which is often described as a combination of Instagram and Pinterest and very popular in mainland China and Chinese American community [sic] in US. It is reported to have 143 million daily active users worldwide.” (Complaint, ¶ 21.) According to Lu, the video he posted on RedNote “was available to the public and was not limited to a private group, private account, or restricted audience.” (Lu Decl., ¶ 6.)1 Furthermore, the alleged statements concern misappropriated public funds and the “Legislature has made clear that the government’s business is the people’s business and that California’s citizens have a right to full disclosure of all information which affects the public fisc.” (Maranatha Corrections, LLC v.

Department of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1075, 1086 (Marantha), internal citation omitted.)

The court is inclined to agree with Lu that Weinberg v. Feisel (2003) 110 Cal.App.4th 1122 (Weinberg) and Abumeira v. Stephens (2016) 246 Cal.App.4th 1291 (Abumeira), relied on by Chen, are distinguishable. (Opposition to Lu’s Special Motion to Strike (“Opposition”), pp. 6:9-7:17.) In Weinberg, the plaintiff alleged that the defendant had stolen from him a valuable collector’s item. (Weinberg, supra, 110 Cal.App.4th at p. 1126.) The Court of Appeal affirmed the trial court’s denial of the defendant’s anti-SLAPP motion, noting that the “it is alleged that defendant began a private campaign, so to speak, to discredit plaintiff in the eyes of a relatively small group of fellow collectors. . . .” (Id. at p. 1127, emphasis added; see also Abumeia, supra, 246 Cal.App.4th at p. 1298 [“Stephens did not present any evidence to establish that the Abuemeiras were anyone other than ‘private, anonymous’ parties or that the dispute was anything other than a private controversy. . . .”], internal citations and quotation marks omitted.)

Here, the allegations concern statements regarding the misuse of public funds— rather than a dispute between parties accusing the other of theft or video of a brawl between neighbors—and were posted on a website that “is reported to have 143 million daily active users worldwide.” (Complaint, ¶ 21; see Maranatha, supra, 158 Cal.App.4th at p. 1086 [the “Legislature has made clear that the government’s business is the people’s business and that California’s citizens have a right to full disclosure of all information which affects the public fisc.”].)

For the reasons discussed above, the court concludes that Lu has met his burden on the first step of the anti-SLAPP analysis.

II. Second Step: Probability of Prevailing

1 Chen does not object to paragraph 6 of the Lu Declaration but does submit several other objections to the Lu Declaration. The court declines to rule on these on these objections as they are not material to the outcome of this motion. The court notes, however, that many of these objections appear to be without merit. For example, Chen objects to Lu’s statement that he has “personal knowledge of the truth and accuracy of the facts set forth herein, and if called upon as a witness, I could competently testify thereto.” (Objections to Lu Declaration, no. 1; see also Lu Decl., ¶ 2.) The court struggles to understand how Lu “lacks” the requisite foundation to testify as to his own knowledge of facts.

The court now turns to whether Chen has demonstrated a probability of the complaint’s four causes of action prevailing, the second step in an anti-SLAPP analysis. A plaintiff meets its burden of showing a probability of prevailing by demonstrating “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.” (Soukop v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291 (Soukop), internal citations and quotation marks omitted.)

This “probability of prevailing” standard is similar to the standard governing a motion for summary judgment in that it is the plaintiff’s burden to make a prima facie showing of facts that would support a judgment in the plaintiff’s favor. (Taus v. Loftus (2007) 40 Cal.4th 683, 714.) Stated differently, the “plaintiff need only establish that his or her claim has ‘minimal merit’ to avoid being stricken as a SLAPP.” (Soukup, supra, 39 Cal.4th at p. 291, internal citations omitted.)

a. First and Second Causes of Action: Libel and Slander

“The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.” (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1369 (Wong), internal citation omitted.) The question of whether the challenged statements convey the requisite factual imputation is ordinarily a question of law for the court. (Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1608.) But some statements are ambiguous and cannot be characterized as factual or nonfactual as a matter of law. (Ibid.) Under these circumstances, it is for the jury to determine whether an ordinary reader would have understood the statements as a factual assertion. (Ibid.) Slander and libel are two types of defamation. (See Civ. Code, § 44.)

The complaint alleges that Lu stated that “he had used SBA loan—those hundreds of billions of dollars relief funds the U.S. federal government handed out to small businesses for payroll and rent during mask period. The funds were not allowed to be used for dividends. Yet this guy used the money to pay dividends and roped me in. At the time, I thought it was fine, but actually it was a trap.” (Complaint, ¶ 22.) Lu argues that this alleged statement was “nonactionable opinion, rhetoric, or hyperbole.” (MPA, p. 7:3-7.)

The court is not persuaded by this argument. The “sine qua non of recovery for defamation . . . is the existence of falsehood. Because the statement must contain a provable falsehood, courts distinguish between statements of facts and statements of opinion for purposes of defamation liability. Although statements of fact may be actionable as [defamatory], statements of opinion are constitutionally protected.” (McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 112 (McGarry), internal citations and quotation marks omitted.) “The critical question is not whether a statement is fact or opinion, but whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact.” (Wong, supra, 189 Cal.App.4th at p. 1370, internal citations and quotation marks omitted.)

Whether Chen used the “SBA loan . . . to pay dividends . . .” could potentially be a provably false assertion of fact. (Complaint, ¶ 22.) This statement is reasonably susceptible to a defamatory interpretation and cannot be characterized as “mere opinion” as a matter of law.

Chen has also submitted to the court evidence indicating that Lu’s alleged statements about Chen’s misappropriation of public funds were false. (Declaration of Plaintiff Hao Chen in Support of Opposition to Anti-SLAPP Motion, ¶¶ 3-6 [“I did not use SBA loan and/or Payment Protection Plan funds obtained by Lusso for profit sharing as asserted by Nathan Lu on RedNote. I have personally reviewed financial statements and have traced the expenditure of the Lusso’s SBA loan and the Covid relief funds. None of them were used for profit sharing. . . .”], Exs. A- B; Declaration of Jerry Huang in Support of Opposition to Anti-SLAPP Motion, ¶¶ 2-6, Exs. A, B.)

Nevertheless, the court is persuaded by Lu’s argument that Chen cannot establish that the allegedly defamatory statements “were ‘of and concerning’ Chen.” (MPA, pp. 6:25-7:2.) “An otherwise defamatory statement is actionable only if it is ‘of and concerning’ the plaintiff. . . . To satisfy the requirement, the plaintiff must show the statement expressly mentions her or refers to her by reasonable implication. The plaintiff must also show the statement was understood by at least one third person to have concerned her.” (Dickinson v. Cosby (2019) 37 Cal.App.5th 1138, 1160 internal citations omitted.)

Chen argues that he can establish that Lu made the alleged statements “of and concerning” Chen because of the “many comments made by third parties in response to Defendant Lu’s post . . .” (Opposition, pp. 9:16-10:12, citing Declaration of Julie Bonnel Rogers in Support of Opposition to Anti-SLAPP Motion (“Rogers Declaration” or “Rogers Decl.”), Ex. B.) In support of this argument, Chen cites an exhibit purportedly attached to the Rogers Declaration. While the Rogers Declaration describes “Exhibit A” and Exhibit B,” however, the declaration filed with the court does not actually include or attach these exhibits.

A plaintiff must show that there is admissible evidence that, if credited, would be sufficient to sustain a favorable judgment. (McGarry, supra, 154 Cal.App.4th at p. 108.) The court cannot evaluate the sufficiency of evidence not before it. For similar reasons, the court is also not persuaded by Chen’s argument regarding malice. (Opposition, p. 10:23-27, citing Rogers Decl., ¶ A.) Therefore, the court finds that Chen has failed to establish a “probability of prevailing” on the complaint’s first and second causes of action.

The court GRANTS Lu’s special motion to strike the complaint’s first and second causes of action.

b. Third Cause of Action: False Light

“False light is a species of invasion of privacy, based on publicity that places a plaintiff before the public in a false light that would be highly offensive to a reasonable person, and where the defendant knew or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the plaintiff would be placed. To establish a false light claim based on a defamatory publication, a plaintiff must meet the same requirements as for a defamation claim.” (Balla v. Hall (2021) 59 Cal.App.5th 652, 687, internal citations and quotation marks omitted.)

Given that when “a false light claim is coupled with a defamation claim, the false light claim is essentially superfluous, and stands or falls on whether it meets the same requirements as the defamation cause of action,” the court finds that Chen has failed to establish a “probability of prevailing” for the complaint’s third cause of action for false light. (Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1385, fn. 13; see also Mitchell v. Twin Galaxies, LLC (2021) 70 Cal.App.5th 207, 224 [“Because we conclude Mitchell’s defamation claim survives the anti-SLAPP motion, his false light claim stands as well.”].)

The court reiterates that Chen relies on Exhibits A and B to the Rogers Declaration in opposition to Lu’s anti-SLAPP motion, but the Rogers Declaration on file with the court, while describing these exhibits, does not actually include or attach these exhibits. (Opposition, pp. 11:13-12:12:9; see, e.g., Rogers Decl.)

The court GRANTS Lu’s special motion to strike the complaint’s third cause of action.

c. Fourth Cause of Action: Intentional Infliction of Emotional Distress

“A cause of action for intentional infliction of emotional distress exists when there is (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. A defendant’s conduct is outrageous when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community.

And the defendant’s conduct must be intended to inflict injury or engaged in with the realization that injury will result. Liability for intentional infliction of emotional distress does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. . . . . With respect to the requirement that the plaintiff show emotional distress, this court has set a high bar. Severe emotional distress means emotional distress of such a substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” (Hughes v.

Pair (2009) 46 Cal.4th 1035, 1050-1051, internal quotations and citations omitted, disapproved on another ground in Wawrzenski v. United Airlines, Inc. (2024) 106 Cal.App.5th 663, 699.)

Chen relies on an exhibit purportedly attached to the Rogers Declaration in opposing Lu’s anti-SLAPP motion. (Opposition, pp. 12:10-26, citing Rogers Decl., Ex. A.) Again, the court notes that these exhibits are not attached to the Rogers Declaration and do not otherwise appear to have been submitted to the court. (See, e.g., Rogers Decl.) For this reason, the court finds that Chen has not met his burden to establish a “probability of prevailing” as to the complaint’s fourth cause of action.

The court GRANTS Lu’s special motion to strike the complaint’s fourth cause of action.

III. Attorney’s Fees

The “prevailing defendant” on the motion to strike “shall be entitled” to recover his or her attorney fees and costs. (Code Civ. Proc., § 425.16, subd. (c).) Here, the motion and reply are not accompanied by any declaration stating the fees and costs incurred in bringing the special motion to strike. Therefore, Lu will have to bring a separate motion for attorneys’ fees in order to recover any monetary award.

IV.

Conclusion

The court GRANTS Lu’s special motion to strike the complaint’s first, second, third, and fourth causes of action.

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