Hao Chen v. Zhipeng Lu

bars the cause of action; and, the statements are nonactionable opinion. However, the email states that “miss behaving [sic] Asian investors have some insider information on our tech and the team” and were responsible for a “criminal compromise” that required “reporting... to the FBI.” This is not opinion; this is an accusation of a crime. “Perhaps the clearest example of libel per se is an accusation of crime.” (Bartholomew v. YouTube, LLC (2017) 17 Cal.App.5th 1217, 1228 (Sixth District); see also Barnes-Hind, Inc. v.

Super. Ct. (Allergan Pharmaceuticals Inc.) (1986) 181 Cal.App.3d 377, 385 (stating that “[p]erhaps the clearest example of libel per se is an accusation of crime”).) Here, the complaint alleges that Defendant knew the allegations were false when made and fabricated the basis for the accusation with the intent to destroy Plaintiffs’ reputations and standing within the investment community and among BDF stakeholders and employees... [and] the desire to destroy Plaintiffs’ goodwill with the BDF stakeholders, to erode the value and rights provided by their holdings in preferred shares, and to drive Plaintiffs out of the business altogether. (See complaint, ¶¶ 12-15, 19, 22.)

The complaint alleges facts supporting malice by Defendant; the common interest does not bar the cause of action. (See Civ. Code § 47, subd. (c) (requiring that, for the application of the privilege, the communication must be made “without malice”).) Defendant’s demurrer to the complaint is OVERRULED.

Plaintiffs 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

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.

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

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 (“Chen Decl.”), ¶¶ 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.)

The court turns to Lu’s remaining arguments. Lu argues that the complaint concedes that Lu “did not use Plaintiff’s name, instead relying on alleged ‘identifying details.’ Without competent evidence that a substantial and identifiable segment of the audience understood the statements to be about Plaintiff, the claim fails.” (MPA, pp. 6:26-7:1.) Neither party appears to dispute that the alleged statements did not identify Chen by name. (See Complaint, ¶ 22.) Instead, 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.)

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 (Dickinson), internal citations omitted.)

Exhibit B to the Rogers Declaration is a “true and correct written certified translation of the comments made by members of the public regarding Defendant Nathan Lu’s RedNote post.” (Rogers Decl., ¶ 3, Ex. B.) Purported comments to the RedNote post include: “I think I can guess which store it is. When I was buying materials, my designer told me to avoid this pitfall”; “The designer even got the colors wrong. I was told it was the brand’s fault for shipping the

wrong items. Later, I went to the brand’s warehouse and saw the email chain, only to realize it was Lusso who placed the order incorrectly . . .”; “I’m currently renovating and I’ve been to these two showrooms many times . . . Stuttering Bro also recommended a Canadian factory to me . . .”; “Lusso . . .”; and “Stuttering Bro-Nathan.” (Id. at pp. 3, 4, 5, 6.)

The court agrees with Chen that this evidence, assuming it is admissible, 2 establishes that “at least one third person” understood the statement to concern Chen. (Dickinson, supra, 37 Cal.App.5th at p. 1160.) Commenters to the RedNote video refer to a business called Lusso and to a “Stuttering Bro.” (Rogers Decl., Ex. B at pp. 3, 4, 5, 6.) The complaint alleges that Chen owns a “cabinet and construction material business” called Lusso and that Chen has “minor speech stuttering.” (Complaint, ¶ 19; see also Chen Decl., ¶¶ 3-4 [“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. . . .”], emphasis original.)

However, a plaintiff must not only establish that the allegedly defamatory statement “was understood by at least one third person to have concerned her,” they must also “show the statement expressly mentions her or refers to her by reasonable implication.” (Dickinson, supra, 37 Cal.App.5th at p. 1160.) The court finds that Chen has not met this second requirement. Chen offers no evidence or argument to the court, beyond noting a single reference to “stuttering, halting speech” in Lu’s alleged statements, as to how the allegedly defamatory statements themselves referred by “reasonable implication” to Chen. (Rogers Decl., Ex.

A, Opposition, 9:23.) In Dickinson, for example, the Court of Appeal found that the timing of and “similarities” in language used in the allegedly defamatory statements at issue meant that a “a reasonable trier of fact could conclude the allegedly defamatory statements contained in each refers to [the plaintiff] by reasonable implication.” (Id. at p. 1161; see also ibid. [“In this context, it is

2 Although not material to the outcome of this motion for reasons discussed below, the court is also inclined to agree with several of the evidentiary objections made by Lu to Exhibit B of the Rogers Declaration, particularly related to a lack of authentication. The Rogers Declaration does not, for example, state where and when the purported “comments” were actually made – it is unclear to the court if these comments were made on the website RedNote, if comments can be made on videos posted on RedNote, how the comments were obtained for the declaration, etc. (See Rogers Decl., ¶ 3; Evid.

Code § 1400 [“Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law.”], § 1401 [“Authentication of a writing is required before it may be received in evidence. . . .”].)

reasonable to read the reference to ‘stories about my client’ to refer specifically to accusations of Cosby’s sexual misconduct. . . . Given this timeline of events, the significant publicity surrounding Dickinson’s allegations and Cosby’s response, and the similarities in language with the November 19 press release, we think a reasonable fact finder could conclude that Dickinson was one of the earlier ‘example[s] of people coming out of the woodwork’ with ‘fabricated’ ‘stories about [Cosby]’ to which the November 20 statement implicitly referred.”].)

To meet the “of and concerning” requirement, Chen’s opposition emphasizes comments purportedly made by viewers of Lu’s allegedly defamatory statements. (Opposition, pp. 9:16-10:12.) However, as noted by Lu in his “supplemental brief,” 3 the “of and concerning” requirement “is satisfied with reference either to a defendant’s actual words or the reasonable implication from defendant’s actual words. . . .” (Lu’s Supplemental Brief in Support of Anti-SLAPP Motion, p. 2:16-18.) 4

3 By way of background, counsel for Chen initially did not submit Exhibits A and B to the Rogers Declaration. The court permitted Chen’s counsel to refile the Rogers Declaration with these exhibits attached. The court also permitted Lu to file supplemental briefing in response to this new evidence submitted by Chen.

4 The court is less persuaded by Lu’s malice argument. (MPA, p. 7:13-22.) When a plaintiff is a “public figure,” they must show that allegedly defamatory statements were made with “actual malice.” (Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 252-253.) Courts distinguish between “all purpose” and “limited purpose” figures. (Ibid.) The court finds that Chen is neither an “all purpose” or “limited purpose” figure. (See Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 24 [“Second, the plaintiff must have undertaken some voluntary act through which he or she sought to influence resolution of the public issue. . . .”], emphasis added.)

Lu further argues that even if the court found that Chen was a “private figure,” Chen would still need to establish that the statements were made with actual malice under Melaleuca, Inc. v. Clark (1998) 66 Cal.App.4th 1344 (Melaleuca). (MPA, p. 7:18-22.) The court does not agree. The Court of Appeal in Melaleuca held that where the “defamed plaintiff is a private party [and] the alleged defamatory statement is a matter of public concern, the plaintiff may not recover presumed or punitive damages without showing actual malice.” (Melaleuca, supra, 66 Cal.App.4th at p. 1360, internal citation omitted, emphasis added.)

The Court of Appeal

Again, outside of a single reference to “stuttering speech,” Chen offers no argument to the court as to how the speech itself refers by reference to Chen.

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 as it has found that Chen has failed to meet this burden as to the complaint’s defamation causes of action. (Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1385, fn. 13, internal citations omitted; 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.”], internal citation omitted; Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1264 [“A ‘false light’ cause of action is in substance equivalent to a libel claim, and should meet the same requirements of the libel claim . . .”], internal citations and quotation marks omitted.)

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,

explicitly noted, however, that the “Constitution permits private individuals to recover liability for damage to their reputation on the basis of negligence . . .” (Id. at p. 1359, emphasis added.)

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.)

An independent cause of action for intentional infliction of emotional distress cannot be maintained where this cause of action is “based on the very same acts which were insufficient to support a cause of action for defamation.” (Flynn v. Higham (1983) 149 Cal.App.3d 677, 681 [“We next turn to the issue of whether an independent cause of action can be maintained for the intentional infliction of emotional distress based on the very same acts which were insufficient to support a cause of action for defamation.

We hold that it cannot.”].) Here, the complaint’s fourth cause of action for intentional infliction of emotional distress is premised upon the same conduct as its first and second causes of action for libel and slander. (Complaint, ¶¶ 26-35, 43- 46 [“Defendant Lu made the Libelous and Slanderous Statements with the malicious intent to cause Plaintiff emotional distress . . .”].) Given that the court has found that Chen has not met his burden of establishing a probability of prevailing as to the complaint’s defamation causes of action, the court similarly finds that Chen has not this burden as to the complaint’s intentional infliction of emotional distress 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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