Siu Holdings Ltd., et al. v. Taaghol

(Id. at 67.)

“[I]n order to establish the requisite probability of prevailing [citation], the plaintiff need only have ‘stated and substantiated a legally sufficient claim.’” (Navellier v. Sletten (2002) 29 Cal. 4th 82, 88, quoting Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal. 4th 1106, 1123.) “Put another way, the plaintiff ‘must demonstrate 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.’” (Id. at 88-89, quoting Wilson v.

Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) “In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim.” (Wilson v.

Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) “To show a likelihood of success, ‘[t]he plaintiff's showing of facts must consist of evidence that would be admissible at trial.” (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1368.) “The plaintiff may not rely on the allegations in the complaint or assertions in a declaration based on information and belief.” (Id.)

Defendant’s request for judicial notice

In support of his special motion to strike, Defendant requests judicial notice of a September 14, 2017 hearing before the Committee on Banking, Housing and Urban Affairs on the role of the Committee on Foreign Investment in the United States (“CFIUS”). The purpose of the hearing, according to the document, is “to have a general discussion of whether or not the CFIUS process is functioning appropriately, to the extent it has sufficient authority to look at the transactions that are affected most by today’s evolving national security considerations.” (Def.’s request for judicial notice, exh. 1, pp.1-2.)

It is entirely unclear as to how this hearing might be relevant to the instant motion or the allegations concerning two June 2, 2025 emails. Defendant’s memorandum cites to unspecified portions of the 104-page document that purportedly are “related to artificial intelligence.” (See Def.’s memorandum of points and authorities in support of special motion to strike the complaint (“Def.’s memo”), p.6:3-6.) “Although a court may judicially notice a variety of matters..., only relevant material may be noticed.” (Aquila, Inc. v.

Super. Ct. (City and County of San Francisco) (2007) 148 Cal.App.4th 556, 569; see also Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 (stating same; also stating “judicial notice, since it is a substitute for proof... is always confined to those matters which are relevant to the issue at hand”); see also Hayward Area Planning Assn. v. City of Hayward (2005) 128 Cal.App.4th 176, 182 (stating that “[o]nly relevant material is a proper subject of judicial notice, even where the Evidence Code provides in mandatory terms that matters be judicially noticed”); see also Evid.

Code § 453, subd. (b) (requiring a party to “[f]urnish[] the court with sufficient information to enable it to take judicial notice of the matter”).) Defendant’s request for judicial notice is DENIED.

Defendant fails to make a threshold showing that the complaint arises from protected activity.

Defendant asserts that the acts complained of—his June 2, 2025 emails—are protected activity pursuant to Code of Civil Procedure section 425.16, subdivision (e)(4) and cites to FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133. There, the California Supreme Court stated that “within the framework of section 425.16, subdivision (e)(4), a court must consider the context as well as the content of a statement in determining whether that statement furthers the exercise of constitutional speech rights in connection with a matter of public interest.” (Id. at p.149.)

In determining whether there is “a public issue or an issue of public interest” pursuant to subdivision (e)(4), “[f]irst, we ask what “public issue or... issue of public interest” the speech in question implicates—a question we answer by looking to the content of the speech.” (Id.) “Second, we ask what functional relationship exists between the speech and the public conversation about some matter of public interest... [i]t is at the latter stage that context proves

useful.” (Id. at pp.149-150.) “[T]he catchall provision demands ‘some degree of closeness’ between the challenged statements and the asserted public interest.” (Id. at p.150.) In determining “[w]hat it means to ‘contribute to the public debate’... we examine whether a defendant—through public or private speech or conduct—participated in, or furthered, the discourse that makes an issue one of public interest.” (Id. at pp.150-151.) “[T]he inquiry of whether a statement contributes to the public debate is one a court can hardly undertake without incorporating considerations of context—including audience, speaker, and purpose.” (Id. at pp.151-152.) “[T]he second part of the test moves from a focus on identifying the relevant matters of public interest to addressing the specific nature of defendant’s speech and its relationship to the matters of public interest.” (Id. at p.152.)

Defendant asserts that “[a] cyber security incident is a public issue and a matter of public interest.” (Def.’s memo, p.5:13.) Here, Defendant presents his own declaration in which he states that for the June 2, 2025 emails, he “sent an internal email to seven employees and one advisor of BDF... [each of which had] a BDF email address ending in @bigdatafed.com.” (Taaghol decl. in support of special motion to strike the complaint (“Def. decl.”), ¶ 15.) He also bcc-ed two Asian investors, a BDF board member and corporate counsel. (See Def. decl., ¶ 16.)

Defendant also states: “At the time of the June 2, 2025 emails, BDF was engaged in discussions with these investors regarding the company’s financial condition, “as these investors considered much needed bridge financing for BDF.” (Id. at ¶ 17.) “Because BDF is a highly regulated fintech company, it was important that [BDF] employees were aware of a cyber security incident impacting our ability to function as a company.” (Id. at ¶ 18.) Defendant’s evidence demonstrates that the discussion was “internal,” and that the statements were made in the context of securing bridge financing and to inform employees about a cyber security incident impacting BDF’s ability to function.

Defendant does not contend that Plaintiffs are in the public eye. The emails refer to a cyber security incident; however, “it is not enough that the statement refer to a subject of widespread public interest; the statement must in some manner itself contribute to the public debate.” (FilmOn.com Inc., supra, 7 Cal.5th at p.150.) The June 2, 2025 emails do not appear to contribute to any public debate regarding the issue of cybersecurity and, indeed, Defendant plainly states that the emails were internal emails about an isolated cyber security incident, and the emails neither entered the public sphere, nor were intended to as the final sentence of the first email is “NO COMMUNICATIONS TO OUR INVESTORS ALLOWED.” (See FilmOn.com Inc., supra, 7 Cal.5th at pp.150-154 (finding that reports that were issued not to wider public and, considering the content and context, did not qualify for protection under the catchall provision of the anti-SLAPP statute as they did not sufficiently contribute to or further the public conversation on an issue of public interest); see also Wilson v.

Cable News Network, Inc. (2019) 7 Cal.5th 871, 903 (California Supreme Court finding that statements about the plaintiff’s purported violation of journalistic ethics did not contribute to ongoing debate on a public controversy, stating that “alleged statements about an isolated plagiarism incident did not contribute to public debate about when authors may or may not borrow without attribution... [w]hat a court scrutinizing the nature of speech in the anti-SLAPP context must focus on is the speech at hand, rather than the prospects that such speech may conceivably have indirect consequences for an issue of public concern... [t]o sweep in a claim about falsehoods made regarding a nonpublic figure, where the falsehoods do not contribute in any meaningful way to

discussion or resolution of an ongoing matter of public significance, would do nothing to advance the statute’s stated purpose of shielding defendants from meritless lawsuits designed to chill speech and petitioning on matters of public interest or controversy... the private context.. makes heavier CNN's burden of showing that, notwithstanding the private context, the alleged statements nevertheless contributed to discussion or resolution of a public issue for purposes of subdivision (e)(4)”).)

Defendant also argues that “[t]he email also references an ongoing internal investigation and reporting of the incident to the FBI, which necessarily falls within the enumerated protected acts under the anti-SLAPP statute.” (Def.’s memo, p.6:6-12.) However, Defendant’s declaration establishes that the incident was reported to the FBI in November 2025 (see Def.’s decl., ¶ 11)— after Plaintiffs filed the complaint. Moreover, it is well established that “[c]auses of action arising from false allegations of criminal conduct are not subject to the anti-SLAPP laws.” (Abuemeira v.

Stephens (2016) 246 Cal.App.4th 1291, 1298; see also Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1127 (stating same, also stating that “[o]therwise, wrongful accusations of criminal conduct, which are among the most clear and egregious types of defamatory statements, automatically would be accorded the most stringent protections provided by law, without regard to the circumstances in which they were made—a result that would be inconsistent with the purpose of the anti-SLAPP statute”); see also Lefebvre v.

Lefebvre (2011) 199 Cal.App.4th 696, 703 (stating same).)

Defendant fails to make a threshold showing that the challenged cause of action is one arising from protected activity. Accordingly, Defendant’s special motion to strike the complaint is DENIED.

As Defendant fails to demonstrate that the alleged actions of which Plaintiffs complains were taken in furtherance of his “right of petition or free speech under the United States or California Constitution in connection with a public issue,” as defined in the statute, the Court need not determine whether Plaintiffs have demonstrated a probability of prevailing on their claims.

II. DEFENDANT’S DEMURRER TO THE COMPLAINT

Defendant demurs to the complaint, arguing that the complaint fails to allege facts sufficient to constitute a cause of action for defamation because: the common interest privilege

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