Filed 10/30/14 Lei v. Lin CA6 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SIXTH APPELLATE DISTRICT 

IRIS LEI, 

Plaintiff and Respondent, 

v. 

SHENGHENG LIN, 

Defendant and Appellant. 

 H039312 

 (Santa Clara County 

 Super. Ct. No. 112CV221911) 

 Defendant Shengheng Lin appeals the trial court’s denial of his special motion to 

strike plaintiff Iris Lei’s first amended complaint (FAC) as a strategic lawsuit against 

public participation (SLAPP). (Code Civ. Proc., § 425.16.)1

 Plaintiff sued defendant for 

libel based on defendant’s publication of allegedly defamatory remarks about plaintiff via 

e-mail to a Yahoo group for the Silicon Valley Chinese Engineers Association (SCEA).2

 

On appeal, defendant claims the trial court erred in finding that plaintiff showed a 

probability of prevailing on the merits of her libel cause of action. For the reasons stated 

here, we will affirm the trial court’s order. 

 1

 Unspecified statutory references are to the Code of Civil Procedure. 

2

 Defendant describes this Yahoo group as the “main community bulletin board” 

for the SCEA. 
2 

I. TRIAL COURT PROCEEDINGS 

 This factual summary is taken from plaintiff’s FAC, defendant’s declaration in 

support of his anti-SLAPP motion, and plaintiff’s declaration in support of her opposition 

to that motion. 

A. SCEA PRESIDENTIAL ELECTION AND ANIMOSITY BETWEEN THE PARTIES

 Plaintiff owns a technology company, 99People, Inc. (99People), which runs an 

“internet portal website[,] www.99People.com, featuring high tech entrepreneurship and 

Sino-US business and cultural exchange among San Francisco Bay Area and 

metropolitan Chinese communities.” She was elected president of SCEA in 2009 and 

served as president until 2011. SCEA is a non-profit organization that consists of 

“professionals of Chinese origin ... working in high-tech industries.” Many members 

live in the San Francisco Bay Area while others “are located nationwide and 

internationally.” The Yahoo group for SCEA (SCEA Yahoo Group) “is comprised of 

thousands of recipients worldwide.” 

 In August 2011, the SCEA Board of Directors held an election for plaintiff’s 

replacement as president involving two candidates, Steve Xue and Wendy Liang. 

According to defendant, Liang was duly elected to succeed plaintiff at that election. 

Defendant claims that despite the validity of the August 2011 election, in November 2011 

plaintiff and Xue challenged that election’s legality and attempted to arrange for the 

SCEA Board of Directors to hold another election. 

 Defendant allegedly asked plaintiff to make him the director or leader of the 

Silicon Valley Innovation and Entrepreneurship Forum (SVIEF), a conference being 

organized by 99People. When plaintiff refused, defendant retaliated against plaintiff and 

“started a smear campaign” against her. “[I]n or about August 2011,” defendant “called 

[plaintiff] by telephone to threaten [her] that [she] should variously resign the presidency 

of SCEA or abandon SVIEF, or [she] would ‘face very bad consequences.’ ” Plaintiff 
3 

also claims defendant “badmouthed [her] to members of his university alumni 

association, where he is president.” 

 Plaintiff alleges three libelous publications by defendant. First, plaintiff claims 

defendant, in collaboration with former codefendants, sent the minutes of a February 

2012 meeting regarding the election dispute, which were written in Chinese, to members 

of SCEA by e-mail through the SCEA Yahoo Group.3

 Without including the original 

meeting minutes or alleging that the FAC contains a verbatim transcription thereof, the 

FAC alleges that the minutes claimed: “a. Lei orchestrated a dinner meeting on 

November 22, 2011, and lied to deceitfully attract attendance by certain Directors of the 

Board of SCEA, in order to elect Steve Xue as the new President of SCEA, leading to 

chaos and dysfunction at SCEA; [¶] b. Lei was guilty of a conflict of interest by 

controlling SCEA’s website through 99People[,] Inc.[,] to blog personal attacks against 

Wendy Liang; and [¶] c. Lei made prank phone calls to harass, coerce and extort Wendy 

Liang while Liang was hospitalized, forcing Liang to apologize to Lei before Lei would 

stop her harassment.” 

 The second allegedly libelous publication also occurred in February 2012, when 

defendant sent a statement written in Chinese via e-mail to the SCEA Yahoo Group 

alleging that: “a. Lei was surreptitiously usurping the name of the SCEA Board of 

Directors to spread lies and to mount personal attacks online against Wendy Liang; [¶] b. 

Lei was illicitly using SCEA resources for her personal gain, by forcing SCEA volunteers 

to work for free for 99People, Inc.[,] and at a SVIEF event, in order to reap personal 

profit; [and] [¶] c. Lei was using 99People to control SCEA’s website as a means to 

attack and distort the image of SCEA, by spreading lies to give the public the false 

 3

 In her declaration in opposition to defendant’s anti-SLAPP motion, plaintiff 

claims she dismissed the former codefendants after each of them apologized to her for the 

allegedly libelous statements. 
4 

impression that SCEA and 99People were cooperating with each other in order for Lei to 

illicitly profit.” Plaintiff included neither the original statement nor a verbatim 

transcription with the FAC. 

 The final libelous publication plaintiff alleges came in the form of e-mails from 

defendant “to other defendants and several former officers of SCEA” where defendant 

claimed plaintiff “was using the title of President of SCEA to cheat people everywhere in 

China, and that Lei was getting illegal kickback[s] from the sponsorships that SCEA 

received.” Plaintiff did not specify when these communications were sent or in what 

language they were written. Copies were not attached to the FAC. 

 In response to these statements, plaintiff sued several individuals (but not 

defendant) for libel, violation of her right to privacy (false light), and intentional 

infliction of emotional distress. In October 2012, plaintiff filed the FAC, which added 

defendant to the case, included the same causes of action, and alleged that the three 

libelous publications “significantly damaged Lei’s reputation in the community and 

caused Lei to suffer extreme emotional and mental distress.” 

B. DEFENDANT’S ANTI-SLAPP MOTION

 Defendant responded by filing an anti-SLAPP motion, arguing that all 

publications allegedly made by defendant were made in furtherance of his First 

Amendment right to free speech on a public issue. Defendant filed a declaration in 

support of his motion in which he recounted his version of the events alleged in the FAC. 

Defendant claimed that plaintiff used her control of the SCEA website, which was hosted 

by 99People, to issue a news release in November 2011 challenging the legitimacy of the 

August 2011 election where Liang was elected to succeed plaintiff as president of SCEA. 

Defendant also listed a number of allegedly improper activities carried out by plaintiff 

related to SCEA, including: requiring SCEA volunteers to work at the 2011 SVIEF for 

the benefit of plaintiff’s company 99People, Inc.; “hijacking the goodwill and power of 
5 

SCEA to benefit SVIEF[;]” and improperly taking a “ ‘finder’s fee’ ” from donations to 

SCEA. 

 Defendant acknowledged in his declaration that a meeting occurred in February 

2012 of former officers and directors of SCEA, where they discussed “how the bylaws 

were violated [by] ... Lei’s improper maneuver of the election” and “Lei’s conflict of 

interests [sic] in developing SVIEF in the name of SCEA ... .” The minutes of that 

meeting were “afterwards sent to SCEA members via” the SCEA Yahoo Group. 

Defendant did not state who sent the minutes or whether he attended the meeting. 

Defendant also described a meeting of SCEA’s “Bylaws Committee,” where he and 

others discussed “Lei’s mismanagement of SCEA and [the] illegal election” arranged by 

plaintiff. The resolution that resulted from this meeting was also sent to the SCEA 

Yahoo Group but defendant does not state who sent it. Regarding e-mails to other SCEA 

members, defendant acknowledged that he sent e-mails to SCEA members but stated that 

all of his e-mails “regarding the impropriety of the new election organized by Lei and 

Lei’s conflict of interests [sic] as SCEA’s president” were sent for the purpose of 

“address[ing] the issues associated with her that we believed were destroying SCEA.” 

 Plaintiff opposed the anti-SLAPP motion and filed a declaration where she 

summarized the libelous statements allegedly published by defendant but still did not 

attach the original publications or translations of them. Defendant filed a reply, 

supporting declarations, and a list of evidentiary objections to plaintiff’s declaration. The 

trial court issued a tentative ruling in January 2013 denying defendant’s anti-SLAPP 

motion with regard to plaintiff’s libel and false light causes of action and granting the 

motion to strike plaintiff’s intentional infliction of emotional distress cause of action. 

 At the hearing on the anti-SLAPP motion, defendant raised a new objection to 

paragraph nine of plaintiff’s declaration, claiming that its summary of the contents of the 

published writings was inadmissible to prove the content of the writings, citing Evidence 

Code section 1523. The court took the matter under submission and issued a written 
6 

decision in February 2013 denying the anti-SLAPP motion as to the libel and false light 

causes of action and granting the motion regarding the intentional infliction of emotional 

distress cause of action. Regarding the Evidence Code section 1523 objection defendant 

raised at the hearing, the court found it “has merit.” The court noted “a problem arises if 

Plaintiff’s evidence fails to prove the contents of the challenged communications because 

... Plaintiff’s assertions in Paragraphs 9 and 12 of her declaration that the communications 

were untruthful is essentially lacking in foundation, and ... it would be necessary to grant 

[defendant’s] motion ... .” However, the court found that plaintiff’s failure to produce the 

actual writings was “not fatal to her case” because defendant “essentially concedes the 

existence and contents of the challenged communications in Paragraphs 13 and 14 of his 

own declaration,” where defendant acknowledged the transmission of various statements 

to the SCEA Yahoo Group as well as sending e-mails to SCEA members about plaintiff. 

 The court then looked to the substance of the anti-SLAPP motion and found that 

defendant “meets his burden to show that the instant lawsuit arises out of protected 

activity ... but Plaintiff likewise satisfies her burden to establish a probability of success 

on the merits of her libel and invasion of privacy claim[s] because her evidence shows 

that the challenged communications were false, and that Lin acted with malice.” The 

court denied each side’s request for attorney fees and costs. 

II. DISCUSSION 

 The filing and resolution of anti-SLAPP special motions to strike is governed by 

section 425.16. An anti-SLAPP motion can be filed when a cause of action implicates 

“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.” (§ 425.16, subds. (b)(1), (e)(4); Kurz v. Syrus Systems, LLC (2013) 221 

Cal.App.4th 748, 757 (Kurz).) To determine whether a cause of action is a SLAPP, 

section 425.16 involves a two-step process. First, a defendant must show that the lawsuit 

arises from protected First Amendment activity falling within any of the four categories 
7 

of section 425.16, subdivision (e).4

 (Kurz, at p. 757.) If the defendant can make that 

showing, “the burden shifts to the plaintiff to demonstrate a probability of prevailing on 

the claim.” (Id. at p. 758; § 425.16, subd. (b)(1).) We review an order granting or 

denying an anti-SLAPP motion de novo (Kurz, at p. 758), considering “the pleadings, and 

supporting and opposing affidavits stating the facts upon which the liability or defense is 

based.” (§ 425.16, subd. (b)(2).) 

A. THRESHOLD SHOWING OF PROTECTED ACTIVITY

 The trial court found that plaintiff’s lawsuit was directed toward protected activity, 

citing section 425.16, subdivision (e)(4), which protects “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.” On 

appeal, plaintiff contends that “the statements here at issue were privately communicated 

within a private association among its insiders about a topic of short-lived, private ... 

interest - and thus are not eligible for protection under the anti-SLAPP statute.” 

Defendant contends that plaintiff is barred from raising this argument on appeal because 

she did not file a cross-appeal and also maintains that the trial court correctly found that 

the statements were made in connection with a public issue or an issue of public interest. 

 4

 Section 425.16, subdivision (e), provides: “As used in this section, ‘act in 

furtherance of a person’s right of petition or free speech under the United States or 

California Constitution in connection with a public issue’ includes: (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 or writing 

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.” 
8 

 Regarding plaintiff’s ability to raise the issue, defendant cites Estate of Powell 

(2000) 83 Cal.App.4th 1434, where the court noted, “[a]s a general matter, ‘a respondent 

who has not appealed from the judgment may not urge error on appeal.’ [Citation.]” (Id.

at p. 1439.) However, in the very next sentence, the Powell court goes on to explain that 

“Code of Civil Procedure section 906 provides a limited exception ‘to allow a respondent 

to assert a legal theory which may result in affirmance of the judgment.’ [Citation.]” 

(Ibid.) Because a finding that plaintiff’s lawsuit did not arise out of protected activity 

would lead to affirmance (albeit on a ground different from the trial court’s reasoning), 

plaintiff may raise this issue on appeal without filing a cross-appeal. 

 Turning to the merits, conduct “in connection with a public issue or an issue of 

public interest” generally falls into one of three broad categories: (1) statements 

concerning “a person or entity in the public eye”; (2) “conduct that could directly affect a 

large number of people beyond the direct participants”; or (3) “a topic of widespread, 

public interest ... .” (Rivero v. American Federation of State, County, and Municipal 

Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 924 (Rivero) [collecting cases for 

each category].) The Legislature has directed that the courts construe this language 

broadly. (§ 425.16, subd. (a); Rivero, at p. 918.) 

 As to the first category, whether plaintiff is a person in the public eye, cases 

falling into this category generally involve conduct directed toward either well-known 

celebrities or at least individuals who have willfully injected themselves into nationally 

accessible entertainment media. (See Seelig v. Infinity Broadcasting Corp. (2002) 97 

Cal.App.4th 798, 801-802, 808 [finding statements about the plaintiff’s appearance on a 

reality television show was related to an issue of public interest].) The record before us 

does not support a finding that plaintiff is so generally recognizable as to warrant being 

deemed a person in the public eye. 

 Defendant asserts that the second category applies because statements plaintiff 

alleges in the FAC “ ‘could affect large numbers of people beyond the direct 
9 

participants.’ ” (Quoting Commonwealth Energy Corp. v. Investor Data Exchange, Inc.

(2003) 110 Cal.App.4th 26, 33.) “ ‘Although matters of public interest include legislative 

and governmental activities, they may also include activities that involve private persons 

and entities, especially when a large, powerful organization may impact the lives of many 

individuals.’ [Citation.]” (Macias v. Hartwell (1997) 55 Cal.App.4th 669, 674 (Macias).) 

When, as here, “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 policy of encouraging participation in matters of public 

significance.” (Du Charme v. International Brotherhood of Electrical Workers (2003) 

110 Cal.App.4th 107, 119 (Du Charme), italics omitted.)5

 Cases involving this “ongoing 

controversy” standard have generally involved homeowners associations or unions. (See, 

e.g., Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479 (Damon) 

[statements regarding governance of 3,000-person homeowners association]; Macias, 

supra, 55 Cal.App.4th at pp. 673-674 [statements regarding qualifications of candidate in 

union election affecting 10,000 members].) In the case of homeowners associations, 

courts finding an issue of public interest have noted that because homeowners 

associations are quasi-governmental entities, a statement made in relation to an 

association election “affects a community in a manner similar to that of a governmental 

entity.” (Damon, at pp. 475, 479.) 

 5

 Though we note another panel of this court has questioned the Du Charme rule 

as being “derived from an observation of only three cases and not based on a more 

comprehensive survey of cases, an analysis of legislative intent, or a discussion of 

statutory interpretation,” (Cross v. Cooper (2011) 197 Cal.App.4th 357, 381), the rule has 

nonetheless been widely accepted. (See, e.g., Cabrera v. Alam (2011) 197 Cal.App.4th 

1077, 1090-1091 (Cabrera); Hailstone v. Martinez (2008) 169 Cal.App.4th 728, 737-

738; Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534, 1549-1550.) 
10 

 One of the few cases to discuss whether conduct constitutes an issue in the public 

interest outside of the context of a homeowners association or a union is Donovan v. Dan 

Murphy Foundation (2012) 204 Cal.App.4th 1500 (Donovan). In Donovan, the board of 

directors of a large non-profit organization voted to remove Donovan as a director. 

Donovan filed a complaint for wrongful removal against the organization and the 

remaining directors and the defendants responded with an anti-SLAPP special motion to 

strike. (Id. at pp. 1503-1504.) 

 On appeal from the trial court’s denial of the anti-SLAPP motion, the defendants 

claimed the vote to remove Donovan was “ ‘in connection with a public issue or an issue 

of public interest.’ ” (Donovan, supra, 204 Cal.App.4th at p. 1508, quoting § 425.16, 

subd. (e)(4).) The appellate court disagreed, reasoning that “[e]ven were we to assume 

that any act of voting is an exercise of the constitutional right of free speech, respondents 

have not shown that the vote to remove Donovan was ‘in connection with a public issue 

or an issue of public interest.’ ” (Donovan, at p. 1508, quoting § 425.16, subd. (e)(4).) 

The court stated there was “no evidence of widespread public interest” in the governance 

of the organization and noted the defendants had not submitted any news articles 

indicating public interest in the dispute. (Id. at pp. 1508-1509.) The court reasoned that 

even the large size of the organization, its oversight by the Attorney General, and the 

amount of money the organization donated annually were insufficient to “transform a 

private disagreement among directors of the [organization] into a public issue or an issue 

of public interest.” (Id. at p. 1509.) The court distinguished Damon and Cabrera, 

finding that, unlike the homeowners associations at issue in those cases, the non-profit 

organization at issue in Donovan “is not a quasi-governmental entity” and there was “no 

evidence that the [organization] affects a community in a manner similar to that of a 

governmental entity.” (Donovan, at pp. 1507, fn. 3 & 1509, fn. 4, italics omitted.) 

 Applying these principles here, plaintiff’s FAC alleged that defendant published 

false statements accusing plaintiff of, among other things, improperly interfering with the 
11 

election of her successor and abusing her position as president of SCEA to obtain illegal 

kickbacks from SCEA sponsors. Though the record does not support a finding that 

improprieties of the SCEA election were an issue of general public interest, defendant 

claims the conduct was of interest to individuals on the SCEA Yahoo Group, which is a 

“limited, but definable portion of the public.” (Du Charme, supra, 110 Cal.App.4th at p. 

119.) Further, the conduct occurred in the context of an “ongoing controversy” because 

the statements were published during a transitional period following a disputed election 

for the president of SCEA. (Ibid.) 

 While the foregoing suggests defendant carried his burden of showing the conduct 

alleged in the FAC is an issue of public interest, we find the reasoning of Donovan

persuasive on these facts. Though defendant focuses on the size of the SCEA Yahoo 

Group, which contains “thousands” of individuals, the size of a group, standing alone, is 

insufficient to turn specific conduct into an issue of public interest.6

 (Donovan, supra, 

204 Cal.App.4th at p. 1509.) Additionally, there is no evidence that SCEA “affects a 

community in a manner similar to that of a governmental entity” in the ways that 

homeowners associations or unions do. (Id. at p. 1509, fn. 4.) Homeowners associations 

exercise significant control over certain aspects of members’ lives. (See, e.g., Damon, 

supra, 85 Cal.App.4th at p. 475 [homeowners association board “played a critical role in 

making and enforcing rules affecting the daily lives of ... residents.”].) Unions likewise 

significantly affect the work lives of members and the collective bargaining engaged in 

by unions affects long-term issues such as member health plans. (See, e.g., Hailstone, 

supra, 169 Cal.App.4th at p. 738 [finding allegations that trustee of union health and 

 6

 Defendant’s reply brief first claims SCEA has 6,500 members and then later 

increases that estimate to 15,000. Plaintiff offers a much lower membership estimate in 

her respondent’s brief, claiming the group had “hundreds” of members. For purposes of 

our discussion, we will rely on the estimate in the FAC, where plaintiff alleged the SCEA 

Yahoo Group “is comprised of thousands of recipients worldwide.” 
12 

welfare fund trust misappropriated money was issue of public interest].) From the record 

before us, it appears that SCEA is a business association that has little effect on the 

individuals who are part of the SCEA Yahoo group. Though defendant’s production of 

an article that he claims appeared in the World Journal, “the largest Chinese-language 

newspaper in the United States,” regarding the disputed election distinguishes this case 

from Donovan, that is not enough to overcome the predominantly private nature of the 

dispute alleged in plaintiff’s FAC. 

 We conclude defendant’s statements were not “in connection with a public issue 

or an issue of public interest” (§ 425.16, subd. (e)(4)), and were therefore outside the 

scope of anti-SLAPP protection. In light of our conclusion, we do not reach the second 

prong of the anti-SLAPP statute, namely, whether plaintiff adequately demonstrated a 

probability of prevailing on her libel and false light causes of action. 

III. DISPOSITION 

 The order is affirmed. 
 ____________________________________ 

 Grover, J. 

WE CONCUR: 

____________________________ 

Bamattre-Manoukian, Acting P.J. 

____________________________ 

Mihara, J.