Wednesday, June 20, 2018
Court of Appeal:
Denial of Making Comment Precludes Anti-SLAPP Motion
Opinion Says if Conduct Did Not Take Place, It Can’t Be ‘Protected’
By a MetNews Staff Writer
A defendant cannot prevail on an anti-SLAPP motion without admitting that he or she engaged in the activity claimed to be protected, the Court of Appeal for this district has held.
The unpublished opinion, filed Monday, was written by Orange Superior Court Judge Kim G. Dunning, on assignment to Div. Five. It affirms Los Angeles Superior Court Judge Malcolm H. Mackey’s denial of an anti-SLAPP motion brought by a cross-defendant who claims she never made the alleged statements underlying the motion.
Cross-defendant Phoebe Huang is the wife of one of the plaintiffs in the underlying case. Several of the defendants in that case filed a cross-complaint alleging that Huang was liable for defamation.
In support of her anti-SLAPP motion, Huang filed a declaration claiming that she had never made the alleged defamatory statements.
Analysis Requires Activity
Such motions require the moving defendant to identify all activity which is protected and is the basis for plaintiff’s claims, and if the court determines that relief is sought based on such protected activity, the burden shifts to the plaintiff to show the probability of prevailing on the merits. But Huang failed to identify any protected activity.
“A defendant who does not establish that she engaged in protected activity fails to clear the hurdle of the first step, and the trial court does not address the second step.”
In this case, Huang denied outright that she made the alleged statements. The court saw this as a defense on the merits which bypassed the first step of the anti-SLAPP motion.
“These merits based arguments have no place in our threshold analysis of whether plaintiffs’ causes of action arise from protected activity,” Dunning declared.
No Public Significance
The court also rejected Huang’s argument that the cross-complainants’ allegations had anything to do with a matter of public interest, a requirement of the anti-SLAPP statute.
The underlying case involved several sophisticated real estate developers involved with development projects designed to attract Chinese investors. Huang argued that at least one of the cross-complainants, Kin Hui, was a man in the public eye and that his projects were of public interest.
“Our review of the record does not persuade us either that Hui is a public figure or that there is any public interest in whether he solicits investors for real estate projects without putting in his own money,” Dunning said.
The defamatory statement alleged in the case was a Chinese expression. The opinion explains that the literal meaning refers to someone using projects to raise funds without putting down any money and, according to the cross-complainants, it has the connotation, in the Chinese language, of someone is dishonest.
Huang “allegedly defamed Hui by telling people he does not use his own money when he solicits investors for real property projects,” Dunning said, commenting:
“This is no more than an alleged garden variety defamation.”
The case is Hui v. Huang, B279426.
Attorneys on appeal were Bub-Joo S. Lee and Anna Novoruzyan of Lee Anav Chung White Kim Ruger & Richter, for Huang, and Joseph D. Curd and Jeffrey B. Smith of Curd, Galindo & Smith, for the cross-complainants.
Copyright 2018, Metropolitan News Company