Zhao v. Wong, A068903

• Decision Date: 20 August 1996
• Docket Number: No. A068903,A068903
• Citation: 55 Cal.Rptr.2d 909,48 Cal.App.4th 1114
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 6239, 96 Daily Journal D.A.R. 10,149 Xi ZHAO, Plaintiff and Appellant, v. Daniel Tai-Yui WONG, Defendant and Respondent.

Page 909

55 Cal.Rptr.2d 909

48 Cal.App.4th 1114, 96 Cal. Daily Op. Serv. 6239,

96 Daily Journal D.A.R. 10,149

Xi ZHAO, Plaintiff and Appellant, v. Daniel Tai-Yui WONG, Defendant and Respondent.

No. A068903.

Court of Appeal, First District, Division 1, California.

Aug. 20, 1996.

Review Denied Nov. 13, 1996.

McManis, Faulkner & Morgan, James McManis, Douglas Watanabe and Michael Reedy, San Jose, for Plaintiff and Appellant

Ralph C. Alldredge, San Francisco, for Defendant and Respondent.

SWAGER, Associate Justice.

The plaintiff in a slander action, Xi Zhao, appeals from a judgment of dismissal entered on an order striking her complaint under the anti-SLAPP statute, Code of Civil Procedure section 425.16 and from an order awarding costs. ¹ We reverse.

FACTUAL BACKGROUND

The complaint alleges that the defendant, Daniel Wong, falsely accused Xi Zhao of murdering his brother, Tai-Kin Wong, and forging his will. On December 31, 1992, Tai-Kin Wong, a molecular biologist, age 44, died suddenly of unexplained causes. Before his death, he was romantically linked with Xi Zhao, a molecular biologist employed at Stanford University. They had lived together for about three years and were the co-founders and sole shareholders of a genetic engineering firm, Transgenic Technologies, Inc., which possessed valuable patents for the genetic engineering of laboratory animals.

At about 7:00 p.m. on New Years Eve, Tai-Kin collapsed in his office but managed to call 911. When paramedics arrived, he was confused and suffering from nausea and vomiting. Four hours later, he died in a hospital emergency room. The case was investigated by the Alameda County Coroner's office which conducted an autopsy and an extensive series of toxicological tests. In a report issued February 26, 1993, the investigator described the case as involving "insignificant history with possible suspicious circumstances" and concluded that the cause of death was "undetermined."

About two weeks after his death, Xi Zhao and three business associates searched Tai-Kin's office and found a sealed envelope bearing romantic stickers in one of his desk drawers. When the envelope was later opened in the presence of a probate attorney, it contained a handwritten note which read "All Tai-Kin Wong's f Xi Zhao, my best half TKW 12-31-92." Construing the note as a holographic will, Xi Zhao filed a petition in probate. The decedent's father, Kok-Cheong Wong, countered by filing a will contest on May 14, 1993. The defendant, Daniel Wong, was not a party to the will contest proceeding. The trial court found the document to be a valid will passing all of Tai-Kin's estate to Xi Zhao. An appeal was filed on March 17, 1994. The judgment was reversed on the ground that the note did not manifest the requisite testamentary intent. (Estate of Wong (1995) 40 Cal.App.4th 1198, 47 Cal.Rptr.2d 707.)

In February or March, 1994, a reporter for the San Jose Mercury News, Michael Dorgan, interviewed the defendant concerning his brother's death and the will contest. On June 16, 1994, appellant filed but did not serve a complaint against Daniel Wong in the San Francisco Superior Court alleging two causes of action for slander based on statements he had allegedly made to Dorgan and his father, Kok-Cheong Wong. On August 21, 1994, the San Jose Mercury News ran a front page article entitled "What--or Who--Killed Tai-Kin Wong." The article did not mention the defendant as a source of information but rather relied on an interview with another brother, Tai-Shing Wong, who was quoted as saying, "I think he was murdered by very high technology--a biological agent." He charged that Xi Zhao had " 'the capability, opportunity and skill' " to commit the murder. The article further noted that the director of the Alameda County Coroner's office stated the office "ran more laboratory tests than they have on any other case in the three years he's been in charge," but "[t]esting for exotic poisons ... is 'like looking for a needle in a haystack.' " The article mentioned certain disputed evidence that Xi Zhao had The defendant was served with the complaint about ten days after the article appeared. On October 26, 1994, he filed a motion to strike the complaint under Code of Civil Procedure section 425.16, supported by a declaration of relevant facts. Without submitting an opposing declaration, Xi Zhao relied entirely on the legal defense, presented in her memorandum of points and authorities, that the complaint did not relate to "a public issue" within the meaning of Code of Civil Procedure section 425.16, subdivision (b). The trial court, however, took the view that the statute "is really written broadly" and "covers things that aren't SLAPP suits." Granting the motion to strike, the court relied particularly on the reasoning that "if you make a comment about a judicial proceeding, that's an act in furtherance of a person's right of petition [or] free speech."

separated from Tai-Kin shortly before his death.

DISCUSSION

A. Statement of Legislative Purpose

The appeal presents a significant issue regarding the scope of the anti-SLAPP statute, Code of Civil Procedure section 425.16. Identification of a SLAPP lawsuit presents difficulties and in order to decide this case we must examine the legislative purpose of the statute.

The Legislature enacted section 425.16 in response to evidence of a growing number of meritless lawsuits, usually alleging tort liability, brought against citizens for exercising their rights of petition and freedom of speech. ² The expression "SLAPP suit," strategic lawsuit against public participation, was coined by two University of Denver professors, George Pring and Penelope Canan, who have written the most influential studies of this phenomenon. In Hull v. Rossi (1993) 13 Cal.App.4th 1763, 1769, 17 Cal.Rptr.2d 457, the court defined a SLAPP suit simply as "one brought to intimidate and for purely political purposes."

As explained in Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 815-816, 33 Cal.Rptr.2d 446, "[t]he paradigm SLAPP is a suit filed by a large land developer against environmental activists or a neighborhood association intended to chill the defendants' continued political or legal opposition to the developers' plans.... [p] SLAPP suits are brought to obtain an economic advantage over the defendant, not to vindicate a legally cognizable right of the plaintiff." The fact that the lawsuit may lack merit "is not of concern to the plaintiff because the plaintiff does not expect to succeed in the lawsuit, only to tie up the defendant's resources for a sufficient length of time to accomplish plaintiff's underlying objective. [Citation.] As long as the defendant is forced to devote its time, energy and financial resources to combating the lawsuit its ability to combat the plaintiff in the political arena is substantially diminished. [Citations.] The SLAPP strategy also works even if the matter is already in litigation because the defendant/cross-complainant hopes to drive up the cost of litigation to the point where the plaintiff/cross-defendant will abandon its case or have less resources available to prosecute its action against the defendant/cross-complainant and to deter future litigation." (Id. at p. 816, 33 Cal.Rptr.2d 446.)

The Legislature designed Code of Civil Procedure section 425.16 "to provide an economical and expeditious remedy to SLAPP suits." (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 647, fn. 3, 49 Cal.Rptr.2d 620.) The first sentence of the statement of legislative purpose in subdivision (a) of Code of Civil Procedure section 425.16 identifies the problem: "The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances." The second sentence states the legislative purpose in carefully drafted language: "The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process."

The meaning of the term "public significance" requires careful analysis. A proper understanding of the phrase is particularly critical to analysis of the statute because the body of the statute contains apparently equivalent expressions. The phrase "public issue" appears in subdivision (b), the operative subdivision of the statute, and in subdivision (e), the definitional subdivision. The term "public interest" is found at the end of the same definitional subdivision.

In the context of Code of Civil Procedure section 425.16, these terms can best be construed from the perspective of the First Amendment freedoms the statute is designed to protect. We find an analogy in the United States Supreme Court decisions protecting the right of free expression of public employees. The threat of discharge from employment, like the threat of litigation, is of constitutional concern because it may tend to prevent or chill the exercise of constitutional rights. The leading decisions Pickering v. Board of Education (1968) 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 and Connick v. Myers (1983) 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 affirm the right of public employees to speak out on matters of public concern. The Connick court noted the "Constitution's special concern with threats to the right of citizens to participate in political affairs.... The First Amendment 'was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.' [Citations.] '[S]peech concerning public affairs is more than self-expression; it is the essence of self-government.' [Citation.] Accordingly, the Court has frequently reaffirmed that speech on public issues occupies the ' "highest rung of the...