Yue v. Han et al

Filing 159

ORDER by Judge Haywood S. Gilliam, Jr. DENYING PARTIES SPECIAL ( 92 , 102 ) MOTIONS TO STRIKE.(ndrS, COURT STAFF) (Filed on 3/17/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DONGXIAO YUE,
Plaintiff,

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GAOGAO HAN, et al.,

Re: Dkt. Nos. 92, 102

Defendants.

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United States District Court
Northern District of California

ORDER DENYING PARTIES’ SPECIAL
MOTIONS TO STRIKE

v.

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Case No.15-cv-03463-HSG

Pending before the Court are the parties’ respective special motions to strike. See Dkt.

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Nos. 92, 102. Plaintiff Dongxiao Yue moves to strike Defendant Gaogao Han’s state-law

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defamation, false advertising, and unfair competition law counterclaims. Dkt. No. 92. Defendant,

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in turn, moves to strike Plaintiff’s state-law defamation claim. Dkt. No. 102. Both parties assert

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that the other’s state-law claims target their free speech rights, in violation of California’s anti-

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Strategic Lawsuit against Public Participation statute (“anti-SLAPP”). Cal. Civ. P. Code § 425.16.

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Because the parties have failed to demonstrate that their speech was made in connection with an

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issue of public interest, the Court DENIES both Plaintiff’s and Defendant’s motions to strike.

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I.

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BACKGROUND
Plaintiff alleges that Defendant infringed Plaintiff’s copyrighted “Tube.JS Program” by

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incorporating the program into his own website and claiming it as his own. Dkt. No. 1 (“Compl.”)

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¶¶ 15–22, 45. According to Plaintiff, when he notified Defendant of the infringing conduct,

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Defendant began a defamatory campaign in which he denigrated both the Tube.JS Program and

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Plaintiff himself. Id. ¶¶ 29–36. Defendant, in response, alleges that Plaintiff publicly attacked

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Defendant in articles and microblogs, ultimately forcing Defendant to shut down his website. Dkt.

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No. 84 (Second Amended Answer, “SAA”) ¶ 2, 30–34.

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II.

LEGAL STANDARD
The California anti-SLAPP statute1 was passed to combat “a disturbing increase in

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lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of
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speech and petition for the redress of grievances.” Cal. Civ. P. Code § 425.16(a). It protects, inter
alia, “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.” Id. § 425.16(e)(3). First, the moving party must

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make a prima facie showing that the challenged claims arise from an act in furtherance of the
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moving party’s rights of petition or free speech. Coretronic Corp. v. Cozen O’Connor, 192 Cal.

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App. 4th 1381, 1388 (Cal. Ct. App. 2011). Only then does the burden shift to the non-moving
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party to prove a likelihood of success on the merits of the claims. Id. The Court must deny the
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motion if the moving party fails to make “the required prima facie showing.” Id.

United States District Court
Northern District of California

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III.

ANALYSIS
A.

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Motion to Strike

The parties have failed to show that any of the speech at issue is protected under the anti14
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SLAPP statute. Because both Plaintiff’s and Defendant’s statements were made on internet blogs,
they are undoubtedly “public.” See, e.g., ComputerXpress, Inc. v. Jackson, 93 Cal. App. 4th 993,

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1007 (Cal. Ct. App. 2001) (finding website where public can access and post free of charge
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constituted “a place that is open to the public where information is freely exchanged.”). Although

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necessary, that is hardly sufficient. Rather, the key question is whether the statements were made
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“in connection with an issue of public interest.”

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Under California law, speech is considered to be “in connection with an issue of public
interest” if it concerns: (1) a person 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. Am. Fed’n of State, Cnty., and Mun. Employees, AFL–CIO, 105 Cal. App. 4th

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913, 924 (Cal. Ct. App. 2003). Mere publication (even on the internet) does not transform private
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California’s anti-SLAPP statute applies to state claims in federal court. Newsham v. Lockheed
Missiles & Space Co., 190 F.3d 963, 970–73 (9th Cir. 1999). A special motion to strike may be
addressed to individual causes of action and need not be directed to the complaint as a whole.
Coretronic Corp. v. Cozen O’Connor, 192 Cal. App. 4th 1381, 1387 (Cal. Ct. App. 2011).
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information into a matter of public interest: “A person cannot turn otherwise private information

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into a matter of public interest simply by communicating it to a large number of people.”

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Weinberg v. Feisel, 110 Cal. App. 4th 1122, 1133 (Cal. Ct. App. 2003); Rivero, 105 Cal. App. 4th

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at 926 (“If the mere publication of information in a union newsletter distributed to its numerous

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members were sufficient to make that information a matter of public interest, the public-issue

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limitation would be substantially eroded, thus seriously undercutting the obvious goal of the

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Legislature that the public-issue requirement have a limiting effect.”).

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Here, Plaintiff alleges that Defendant denounced the pending copyright infringement
action as “extortion” and minimized the value of Plaintiff’s code. Defendant, in turn, alleges that

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Plaintiff called him a thief and accused him of stealing Plaintiff’s own code for his website. Yet

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United States District Court
Northern District of California

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neither Plaintiff nor Defendant has adequately explained how their respective public statements

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are related to issues of public interest as opposed to their private feud. They are merely arguing

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over the current copyright infringement action and the underlying facts. To warrant protection,

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however, the “focus of the speaker’s conduct should be the public interest rather than a mere effort

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‘to gather ammunition for another round of [private] controversy . . . .’” Weinberg, 110 Cal. App.

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at 1132–33 (quoting Connick v. Myers, 461 U.S. 138, 148 (1983)). “[A] matter of concern to the

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speaker and a relatively small, specific audience is not a matter of public interest.” Id. at 1132.

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The parties’ contention that their statements are of interest to the viewers of their

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respective websites is unavailing. This is not a situation like Makaeff v. Trump Univ., LLC, 715

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F.3d 254 (9th Cir. 2013), where the non-moving party was warning would-be consumers of

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deceptive business practices. There is no evidence that there has been any public debate about the

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Tube.JS Program or that the parties were contributing to such debate. Cf. Du Charme v. Int’l Bhd.

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of Elec. Workers, Local 45, 110 Cal. App. 4th 107, 117 (2003) (holding that online report about

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employee terminated for financial mismanagement was informational, but not connected to any

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“ongoing controversy, dispute or discussion”); Rivero, 105 Cal. App. 4th at 924 (holding reports

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that supervisor terminated after union members complained of his activities was not a discussion

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of policies against unlawful workplace activities). The Court also notes the inherent inconsistency

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in the parties’ arguments. Each claims his own statements are protected because they were made
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on issues of public interest whereas the other party’s statements on similar topics are not. The

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Court declines to credit such gamesmanship and DENIES both motions to strike.

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B.

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To the extent that Defendant is also moving to dismiss the complaint under Federal Rule of

Motion to Dismiss

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Civil Procedure 12(b)(6), this request is untimely. Elvig v. Calvin Presbyterian Church, 375 F.3d

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951, 954 (9th Cir. 2004) (“A Rule 12(b)(6) motion must be made before the responsive

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pleading.”) (citing Fed. R. Civ. P. 12(b)(6)). Yet the motion is insufficient even when treated as a

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motion for judgment on the pleadings. “A judgment on the pleadings is properly granted when,

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taking all the allegations in the pleadings as true, [a] party is entitled to judgment as a matter of
law.” Lyon v. Chase Bank USA, N.A., 656 F.3d 877, 883 (9th Cir. 2011) (quotation omitted).

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United States District Court
Northern District of California

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Plaintiff’s motion simply refutes Defendant’s factual allegations. The Court accordingly DENIES

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the motion to dismiss.

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IV.

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CONCLUSION
For the foregoing reasons, the Court DENIES Defendant’s motion to strike Plaintiff’s

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state-law causes of action and the Court DENIES Plaintiff’s motion to strike and dismiss

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Defendant’s counterclaims.

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IT IS SO ORDERED.
Dated: 3/17/2017

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HAYWOOD S. GILLIAM, JR.
United States District Judge

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