Zang v. Xu CA2/3 ( 2023 )

Filed 6/14/23 Zang v. Xu CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
YANBIN ZANG, B311357
Plaintiff and Respondent, Los Angeles County
Super. Ct. No.
v. 20GDCV00485
JUN XU et al.,
Defendants and Appellants.
APPEALS from orders of the Superior Court of Los Angeles
County, Ralph C. Hofer, Judge. Affirmed.
Liang Ly and Jason L. Liang for Defendants and
Appellants Jun Xu, Joanie Yan, and J & C International Group,
LLC.
FTW Law Group and Felix T. Woo for Defendants and
Appellants Qi Shen, ZHL Management, Inc., HZV Holding, Inc.,
and Hong Kong Supermarket.
Jones, Davis & Jackson, Gary M. Jackson; Robin Min
Chung Hou for Plaintiff and Respondent.
_______________________________________
INTRODUCTION
Plaintiff and respondent Yanbin Zang (plaintiff) is a
Chinese national who came to the United States on a tourist visa
in September 2018. He hopes to immigrate to the United States
and sought assistance from the defendants and appellants—a
handful of individuals and related companies (collectively,
defendants) that purport to provide immigration and investment
services to wealthy Chinese nationals.1 Plaintiff generally alleges
that defendants promised to obtain a visa and green card for him
based on a $500,000 investment he made with them. But in
reality, plaintiff contends, defendants deceived him about the
nature of the investment, the basis for his visa application, and
other related matters. He also contends that his visa
application—which defendants concealed from him—was riddled
with fraudulent statements and that his signature on the
application was forged. As a result, plaintiff’s immigration status
is at risk.
Plaintiff filed the instant lawsuit against defendants,
asserting claims for violation of the Immigration Consultants Act,
fraudulent misrepresentation, fraudulent concealment, breach of
fiduciary duty, and unfair competition. Defendants, organized
into two groups, filed special motions to strike the operative
1The defendants and appellants are Jun Xu, Joanie Yan, J & C
International Group, LLC, Qi Shen, ZHL Management, Inc., and Hong
Kong Supermarket. Defendant HZV Holding, Inc., is listed as an
appellant on the opening and reply briefs as well as the notice of
appeal filed by the attorney for Qi Shen. However, defendants state
that HZV Holding is no longer pursuing its appeal because the trial
court sustained a demurrer as to the only cause of action asserted
against this defendant.
2
complaint under Code of Civil Procedure section 425.16.2
Generally, defendants asserted that filing a petition with the
United States Citizenship and Immigration Services
(Immigration Service) is statutorily protected petitioning activity
and that plaintiff’s claims lack the minimal merit required to
survive an anti-SLAPP motion.
The trial court denied both motions and defendants appeal.
Although the court agreed with defendants that filing an
immigration petition is protected activity, it found that the
majority of plaintiff’s allegations related to unprotected activities
such as concealing the petition, misrepresenting the basis of the
petition, and misleading plaintiff with respect to his investment.
Further, and to the extent that any of the allegations implicated
activity protected under section 425.16, the court found plaintiff’s
evidence sufficient to overcome defendants’ motions. We affirm
the orders denying the special motions to strike.
FACTS AND PROCEDURAL BACKGROUND
1. Immigration and Investment Plan
Plaintiff is a Chinese national. He arrived in California on
a tourist visa in September 2018 and hopes to immigrate to the
United States. To that end, after plaintiff arrived in the Los
Angeles area, he contacted defendant Meiju Group, LLC, a
company he understood to offer immigration services to Chinese
nationals. In late September 2018, he met with defendant David
Chang at Meiju Group’s offices. Chang advised plaintiff that he
2All undesignated statutory references are to the Code of Civil
Procedure.
3
could obtain a green card3 if he made investments in the United
States and suggested an investment opportunity involving
defendant Hong Kong Supermarket. Specifically, Chang took
plaintiff to the Hong Kong Supermarket location in Monterey
Park and represented that plaintiff could use that market as an
investment to obtain his green card. Plaintiff signed an
agreement retaining Meiju Group and Chang as “migration
agents” and transferred $120,000 to a bank account at Chang’s
direction.
Chang introduced plaintiff to defendant Jun Xu, who
Chang represented was the owner of Hong Kong Supermarket.
Plaintiff met with Xu and Chang in early October 2018. Xu told
plaintiff that he could obtain an L-1A work visa and ultimately a
green card by investing in Hong Kong Supermarket. Xu implied
that he had a personal connection with an immigration officer to
facilitate the matter. In addition, Chang and Xu advised plaintiff
that defendant J & C International Group, LLC (J & C) was a
company that provided cross-border investment opportunities
and had been providing investment management and
immigration services to high net-worth Chinese nationals since
2015.
At Xu’s request, plaintiff signed a service contract with
J & C, which plaintiff was told would replace his agreement with
Meiju Group. Xu advised plaintiff that, pursuant to the service
contract, plaintiff would have the right to supervise and manage
3 Having a green card (officially known as a Permanent Resident Card)
allows you to live and work permanently in the United States.
( [as of June 13, 2023], archived at
.)
4
the company in which he invested, and that he would work at the
company and receive a salary. Plaintiff promised to invest
$500,000 in Hong Kong Supermarket and pay J & C for
immigration services; J & C guaranteed that plaintiff would
receive either a green card or a refund of his investment. J & C
also promised that it would provide immigration services in strict
compliance with applicable laws and regulations. At Xu’s
direction, plaintiff transferred $500,000 to defendant HZV
Holding, Inc., which Xu represented as his company’s investment
arm.
After plaintiff signed the service contract with J & C and
transferred the funds to HZV Holding, Xu introduced plaintiff to
defendant Joanie Yan. Xu told plaintiff that Yan would prepare
his L-1A work visa application and plaintiff provided Yan with
various supporting documents including a copy of his passport
and his tourist visa application. Yan assembled the materials
under the direction of defendant James Yang, an attorney
retained to submit the visa application on behalf of defendant
ZHL Management, Inc.
In late April 2019, plaintiff learned that his visa
application had been approved. Specifically, he received a copy of
a notice sent from the Immigration Service to Yang at the office
of his law firm, defendant Pegasus Law Group. The notice was
addressed to ZHL Management, Inc., which was designated as
plaintiff’s employer and the petitioner for the visa. Plaintiff
subsequently contacted Xu, Yan, and Chang on multiple
occasions regarding his employment.
In July 2019, plaintiff married Lisa Fan, a citizen of the
United States.
5
In August 2019, Yan directed plaintiff to report for work at
Hong Kong Supermarket in Monterey Park. He did so but was
given no tasks and no one provided any information about his
duties, responsibilities, authority, or salary. Plaintiff was
directed to sit in an executive office during business hours on his
first day but on the second day was told that none of the other
executives came to work and it was not necessary for him to do
so.
Plaintiff was dissatisfied with the arrangement and, in late
August 2019, contacted Chang, Xu, and Yan to address his
concerns, including the fact that he had not been paid after
working for ZHL Management for more than one month. He also
requested but was not provided with a copy of the L-1A visa
application. Plaintiff advised that he needed a copy of the
application because his new wife planned to file a request for a
green card on his behalf. Yan advised plaintiff that he could not
obtain an investment-based green card if his wife were to file a
spousal request for a green card.
In mid-September, plaintiff’s wife filed a spousal request
for plaintiff’s green card with the Immigration Service. At Yan’s
direction, plaintiff then signed a document terminating the
service agreement with J & C. Yan promised to send him a copy
of the visa application but did not do so.
In mid-January 2020, plaintiff and his wife reported to the
Immigration Service for an interview relating to the spousal
green card application. But when the immigration officer asked
plaintiff questions about the visa application submitted on behalf
of ZHL Management, plaintiff was unable to confirm the
information in the application. According to the immigration
officer, that visa application stated that plaintiff worked at the
6
Hawaiian Gardens location of Hong Kong Supermarket, which
had been closed for some time. The officer advised that the
previous visa application was under investigation. During the
interview, plaintiff saw the first page of the visa application and
observed that his signature had been forged.
After the interview, plaintiff contacted Xu and Yan. Xu
gave plaintiff a list of questions and answers he could use to
prepare for any subsequent immigration interview. The answers
were mostly false, however. Xu also informed plaintiff that his
“investment” had been reduced to $300,000 and had been placed
in the Hawaiian Gardens location of Hong Kong Supermarket
which had closed in September 2019, not in the Monterey Park
location as plaintiff had understood.
In late January 2020, plaintiff received a W-2 form
indicating that he had been paid $25,000 by ZHL Management in
2019. But plaintiff had only received one paycheck in the amount
of $4,056.39. Plaintiff’s complaints to Yan went unanswered.
Eventually, in May 2020, plaintiff hired an attorney to help
him obtain a copy of the visa application submitted on behalf of
ZHL Management. The attorney contacted Yang, who refused to
provide a copy of the application. Shortly thereafter, Yan called
plaintiff and told him to stop requesting a copy of the visa
application. If he did not, Yan said, she would use her
connections at the Immigration Service and Xu’s connections
with the Chinese Embassy and the Chinese police to “resolve” the
matter.
Plaintiff’s attorney contacted Yang again in early June
2020 to request a copy of the visa application. Yang responded by
sending the attorney a copy of a statement by defendant Qi Shen
(Shen statement). The Shen statement indicated that plaintiff’s
7
employment with ZHL Management had been terminated as of
November 2019 because plaintiff had committed financial fraud
in China. It also stated that ZHL Management had revoked its
visa application and would notify the Chinese Embassy and
Chinese Consulate of plaintiff’s “current case status.”
2. Plaintiff’s Complaint
Plaintiff initiated the present action in June 2020. The
operative second amended complaint includes seven causes of
action. As pertinent here, the first cause of action for violation of
the Immigration Consultants Act, the second cause of action for
fraudulent misrepresentation, the third cause of action for
fraudulent concealment, and the fourth cause of action for breach
of fiduciary duty are asserted against Xu, Yan, and J & C
(collectively, Xu defendants). Shen and ZHL Management are
also named in the third cause of action. The fifth cause of action
for violation of the Unfair Competition Law (Bus. & Prof. Code,
§ 17200) is asserted against J & C and Hong Kong Supermarket.
The sixth cause of action (a request for an accounting) is asserted
against Hong Kong Supermarket and HZV Holding.4 Plaintiff
sought penalties under the Immigration Consultants Act,
economic damages of $620,000, punitive damages, and attorney’s
fees.
Generally, the complaint alleges that defendants worked in
concert to lure plaintiff into making an investment in one of their
4The seventh cause of action for legal malpractice is asserted against
Yang and Pegasus Law Group. In addition, Chang, Meiju Group, and
ZJL Management are named as defendants in the lawsuit. As these
defendants are not parties to the present appeal, we will not discuss
any claims or issues relating only to them.
8
businesses in furtherance of a plan to provide sham employment
to support a falsified visa application.
3. The Xu Defendants’ Special Motion to Strike Under
Section 425.16
3.1. Motion
The Xu defendants filed an anti-SLAPP motion in which
Shen, ZHL Management, and Hong Kong Supermarket
(collectively, Shen defendants) joined. The Xu defendants moved
to strike each of the six causes of action asserted against them in
its entirety on the ground that the claims target protected
petitioning activity. The Xu defendants described the conduct
targeted by the operative complaint as “the provisioning of lawful
immigration services, following the advice of an attorney, and the
submission of an immigration petition.” Such conduct, they
asserted, falls squarely within the protection afforded by
section 425.16, subdivision (e), which defines protected activity as
including “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.”
In support of their special motion to strike, the Xu
defendants submitted three declarations. The first, by Yang,
stated that “[t]he allegations of the Second Amended Complaint
are wrong. Based on [plaintiff’s] relationship and duties with
ZHL and any related entities as set forth in the I-129 Petition
and RFE Response, there is nothing unlawful or irregular about
the I-129 Petition.” The second declaration, by Yan, stated that
she followed the directives of Yang at all times, “did not do
anything improper,” and “never tried to threaten Plaintiff, at any
9
time or in any way. I certainly did not report Plaintiff to either
the [Immigration Service] or to any Chinese authorities. The
allegations in the Second Amended Complaint are not true.” The
third declaration, Xu’s, also attested that the allegations in the
operative complaint “are absolutely false.” He stated, further,
that J & C was “duly authorized to provide certain immigration
services as a registered consultant and provided all services
lawfully.” In addition, and to ensure compliance with
immigration laws, J & C had hired Yang to prepare and submit
the L-1A visa application on behalf of ZHL Management. Like
Yan, Xu denied that J & C did anything improper and further
denied threatening plaintiff or contacting either the Immigration
Service or Chinese authorities.
3.2. Opposition
Plaintiff opposed the motion, arguing as to the first prong
that the Xu defendants failed to establish that their conduct was
protected and, as to the second prong, that his evidence
established a prima facie case sufficient to withstand the anti-
SLAPP motion. Plaintiff observed that the Xu defendants’ motion
was vague, as it failed to specify exactly what conduct they
claimed was protected petitioning activity. Further, plaintiff
emphasized that his claims were not aimed at the act of filing the
visa petition, but rather their acts of inducing his investment
with false promises to obtain a green card. In addition, citing
Flatley v. Mauro (2006) 39 Cal.4th 299, plaintiff argued that the
Xu defendants’ illegal activity, which formed the basis of his
complaint against them, is not protected under the anti-SLAPP
statute.
In any event, plaintiff asserted, he had established a prima
facie case as to each of his claims. He submitted his own
10
declaration in support of the opposition, in which he attested to
the facts stated in the complaint and set forth, ante. Plaintiff’s
attorney also provided a declaration in support of the opposition,
in which she disclosed information she had discovered about the
Xu defendants and their related companies.
3.3. Reply
In reply, the Xu defendants insisted that they provided
legitimate and lawful immigration services and that plaintiff’s
allegations to the contrary were utterly false.
3.4. Ruling
The court denied the motion. The court noted that the
motion broadly challenged five5 causes of action without
differentiating among them, making the court’s analysis
somewhat difficult. In any event, the court found that the first
cause of action for violation of the Immigration Consultants Act
was based on the breach of statutory duties owed to plaintiff, not
any protected petitioning activity. The fourth and fifth causes of
action, the court found, were predicated on that same conduct. As
to the second and third causes of action for fraudulent
misrepresentation and fraudulent concealment, the court
observed that the thrust of plaintiff’s complaint related to luring
plaintiff into their investment for a green card scheme and
threatening him with deportation when he was dissatisfied—not
the lawful provision of immigration services. In sum, the court
5The cause of action for an accounting did not name the Xu
defendants.
11
concluded, the conduct targeted by the operative complaint was
not activity protected under the anti-SLAPP statute.6
4. The Shen Defendants’ Special Motion to Strike Under
Section 425.16
4.1. Motion
The Shen defendants also filed a special motion to strike
under section 425.16. The Shen defendants requested that the
court strike the third cause of action for fraudulent concealment
in its entirety and strike specific paragraphs of the complaint
relating to their conduct. According to the Shen defendants, the
allegations in the operative complaint relating to their conduct
are found in paragraph 56 [Yan’s phone call to plaintiff in which
she threatened to use her influence with the Immigration Service
and Xu’s influence with the Chinese Embassy and Chinese
police], paragraphs 58–61 and 83 [Yang’s act of sending the Shen
statement to plaintiff’s counsel], paragraphs 95 and 96 [the Shen
defendants’ act of making the Shen statement, in furtherance of
the wrongful acts of the other named defendants], and
paragraphs 80–83 and 96 [the Shen defendants’ participation in
the overall investment and immigration conspiracy by
threatening plaintiff with deportation, terminating plaintiff’s
employment at ZHL Management, intimidating plaintiff by
suggesting they had personal influence with Chinese officials,
and claiming that they revoked their visa application.] The Shen
defendants asserted that each of the allegations against them
6The court went on to conclude that plaintiff had offered sufficient
evidence to establish that he was likely to prevail on his claims.
Because we resolve this matter at the first-prong stage, we need not
discuss the court’s second-prong analysis.
12
related to petitioning activity, i.e., communications with
government officials, protected under Civil Code section 47,
subdivision (b). In support of their motion, the Shen defendants
submitted a declaration by Shen attesting that he had not
contacted the Immigration Service, the Chinese Embassy or
Consulate, or any other Chinese government officials about
plaintiff.
4.2. Opposition
Plaintiff opposed the motion. In support of the opposition,
plaintiff submitted his own declaration and a declaration by his
attorney. Each declaration is identical to the corresponding
declaration submitted in support of the opposition to the Xu
defendants’ special motion to strike. Plaintiff asserted that each
of the Shen defendants committed acts designed to support the
immigration and investment scheme developed by the Xu
defendants. Specifically, plaintiff argued that Hong Kong
Supermarket provided the investment opportunity, ZHL
Management provided the sham employment, and Shen, as the
“frontman” of ZHL Management, purportedly terminated his
employment. These actions, plaintiff urged, are not protected
activity and are illegal and therefore unprotected under the anti-
SLAPP statute for that additional reason. In any event, plaintiff
asserted, his evidence sufficiently established a prima facie case
as to each of his causes of action.
4.3. Reply
In reply, the Shen defendants reasserted that plaintiff’s
claims against them arose from protected activity. They denied
their conduct was illegal and, in any event, argued that plaintiff
failed to make a prima facie case.
13
4.4. Ruling
The court denied the motion. As in its ruling on the Xu
defendants’ special motion to strike, the court noted that the
third cause of action was predicated on the Xu defendants’
immigration for investment scheme and the Shen defendants’
participation in that scheme by providing the investment vehicle
and sham employment, none of which is protected petitioning
activity. Further, in making the Shen statement, the Shen
defendants assisted the Xu defendants in their efforts to conceal
plaintiff’s visa application from him. And it was not evident, in
any case, that the Shen statement was directed to anyone other
than plaintiff. In short, the court found, the Shen statement was
part of a larger conspiracy to defraud plaintiff. The court rejected
the Shen defendants’ further argument that the Shen statement
was protected by the litigation privilege.
5. Appeal
The court filed its orders on the special motions to strike on
March 8, 2021. The Xu defendants and the Shen defendants
timely appeal.
DISCUSSION
1. General Principles of the Anti-SLAPP Statute
Under the anti-SLAPP statute, a defendant may move to
strike claims “ ‘arising from any act … in furtherance of the
[defendant’s] right of petition or free speech under the United
States Constitution or the California Constitution in connection
with a public issue.’ ” (Wilson v. Cable News Network, Inc. (2019)
7 Cal.5th 871, 884.) Section 425.16 does not completely insulate a
defendant’s protected speech but instead provides a mechanism
14
“for weeding out, at an early stage, meritless claims arising from”
protected activity. (Baral v. Schnitt (2016) 1 Cal.5th 376, 384
(Baral).)
Courts apply a two-prong test when evaluating an anti-
SLAPP motion. (Baral, supra, 1 Cal.5th at p. 384.) Under the
first prong, the defendant must establish that the challenged
claim arises from activity protected by section 425.16. (Baral, at
p. 384) If the defendant establishes that the plaintiff’s claims
arise out of protected activity, the burden shifts to the plaintiff at
the second prong to demonstrate a probability of prevailing on its
claims. (Ibid.)
At the second prong, the plaintiff must make a prima facie
showing of facts sufficient to sustain a favorable judgment.
(Wong v. Jing (2010) 189 Cal.App.4th 1354, 1368.) The court’s
analysis is similar to the evaluation of a summary judgment
motion. (Baral, supra, 1 Cal.5th at p. 384.) “The court does not
weigh evidence or resolve conflicting factual claims. Its inquiry is
limited to whether the plaintiff has stated a legally sufficient
claim and made a prima facie factual showing sufficient to
sustain a favorable judgment. [The court] accepts the plaintiff’s
evidence as true, and evaluates the defendant’s showing only to
determine if it defeats the plaintiff’s claim as a matter of law.”
(Id. at pp. 384–385.) If the plaintiff makes a prima facie showing
of a likelihood of success, the court should deny the anti-SLAPP
motion unless, as a matter of law, the defendant’s evidence
defeats the plaintiff’s claim. (Wong, at p. 1368.)
We review de novo the grant or denial of an anti-SLAPP
motion, and we exercise our independent judgment in
determining whether the challenged claims arise from protected
15
activity. (Park v. Board of Trustees of California State University
(2017) 2 Cal.5th 1057, 1067 (Park).)
2. The court properly denied the Xu defendants’ anti-
SLAPP motion.
“[A] claim is subject to an anti-SLAPP motion to strike if its
elements arise from protected activity. [Citation.] Courts deciding
an anti-SLAPP motion thus must consider the claim’s elements,
the actions alleged to establish those elements, and whether
those actions are protected. [Citation.]” (Bonni v. St. Joseph
Health System (2021) 11 Cal.5th 995, 1015.) More particularly, at
the first step of the analysis under the anti-SLAPP statute, the
moving defendant carries the burden to establish that the
plaintiff’s claims arise out of protected activity. (Baral, supra,1 Cal.5th at p. 384.) To meet that burden, the defendant must
identify all allegations of protected activity in the plaintiff’s
complaint and the claims for relief supported by those
allegations. (Id. at p. 396.) The defendant also must identify “the
elements of the challenged claim[s] and what actions by the
defendant supply those elements and consequently form the basis
for liability.” (Park, supra, 2 Cal.5th at p. 1063.)
In their special motion to strike, the Xu defendants
asserted that all of plaintiff’s claims arise out of “the provisioning
of lawful immigration services, following the advice of an
attorney, and the submission of an immigration petition.” Such
conduct, they claimed, falls squarely within the protection
afforded by section 425.16, subdivision (e) [defining protected
activity as including “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”]. The Xu defendants failed,
16
however, to discuss any of the specific allegations in plaintiff’s
complaint or connect those allegations with the five causes of
action asserted against them. (See Baral, supra, 1 Cal.5th at
p. 396.) The Xu defendants did not identify the elements of
plaintiff’s causes of action, nor did they explain how their alleged
protected conduct established those elements. (Park, supra, 2
Cal.5th at p. 1063.) Moreover, the Xu defendants did not address
the fact that many of plaintiff’s claims are based largely, if not
entirely, on allegations concerning conduct that is not protected
under the anti-SLAPP statute. (See Baral, at p. 396 [where a
complaint includes allegations arising out of protected and
unprotected activity, defendant must show the challenged causes
of action arise out of the protected activity].) Indeed, the thrust of
plaintiff’s complaint relates to a complex scheme designed to
divest him of more than $600,000, based on the false promise
that his so-called investment and sham employment would
enable him to obtain a green card. And as we will explain,
plaintiff’s specific allegations about the visa application focus
primarily on the fact that the Xu defendants concealed the
content of the application from him—not the fact that they filed
the application in the first instance.
On appeal, the Xu defendants take a similarly broad-brush
approach, claiming that “[t]he entire complaint thus falls easily
within the protection of the anti-SLAPP statute.” But again, they
do not discuss the elements of plaintiff’s claims, which vary
considerably. With respect to the first cause of action, for
example, plaintiff must establish that the defendants violated the
Immigration Consultants Act by making “false or misleading
statements to a client while providing services to that client[,]”
making a “guarantee or promise to a client, unless the guarantee
17
or promise is in writing and the immigration consultant has some
basis in fact for making the guarantee or promise[,]” making a
“statement that the immigration consultant can or will obtain
special favors from or has special influence with the United
States Citizenship and Immigration Services, or any other
governmental agency, employee, or official, that may have a
bearing on a client’s immigration matter[,]” or “[charging] a client
a fee for referral of the client to another for services which the
immigration consultant cannot or will not provide to the client.”
(Bus. & Prof. Code, § 22444.) Plaintiff has alleged conduct on the
part of the Xu defendants as to each of these categories, none of
which involves the purportedly protected activity of “provisioning
of lawful immigration services, following the advice of an
attorney, [or] the submission of an immigration petition.”
The Xu defendants’ approach fares no better with respect to
plaintiff’s two fraud claims. To prevail, plaintiff must establish
“(1) a misrepresentation (false representation, concealment, or
nondisclosure); (2) knowledge of falsity (or scienter); (3) intent to
defraud, i.e., to induce reliance; (4) justifiable reliance; and
(5) resulting damage. [Citation.]” (Robinson Helicopter Co., Inc. v.
Dana Corp. (2004) 34 Cal.4th 979, 990.) The misrepresentations
complained of in the second cause of action include, for example,
that the Xu defendants promised in the service agreement to
provide lawful immigration services but did not, that they
promised to provide a legitimate investment and employment
opportunity but did not, that they worked in concert to convince
plaintiff that if he invested money with them he would be entitled
to a green card, and that they would submit a visa application
based on plaintiff’s status as an investor but did not. Similarly,
the allegations relating to the third cause of action implicate the
18
Xu defendants’ collective action to conceal their wrongful acts
from plaintiff by, for example, forging his signature on the visa
application and refusing to provide him with a copy of the
application. To the extent these allegations relate to the
preparation and submission of the visa petition to the
Immigration Service, they do so only tangentially. The complaint
cannot be fairly read to allege that the submission of the visa
petition, standing alone, is a basis for relief. (See Baral, supra, 1
Cal.5th at p. 394 [“Allegations of protected activity that merely
provide context, without supporting a claim for recovery, cannot
be stricken under the anti-SLAPP statute.”].) In other words, the
Xu defendants’ contention that the conduct targeted by the
complaint is limited to, or even focused mainly upon, the
provision of lawful immigration services misrepresents the
substance of the operative complaint.
Finally, and as to the fourth cause of action, the Xu
defendants did not separately address the breach of fiduciary
duty claim below or on appeal. We need not do so. (Placer County
Local Agency Formation Com. v. Nevada County Local Agency
Formation Com. (2006) 135 Cal.App.4th 793, 814 [“We need not
address points in appellate briefs that are unsupported by
adequate factual or legal analysis.”].)7
In sum, the Xu defendants filed a cursory anti-SLAPP
motion and failed to meet their burden under the first prong of
the anti-SLAPP statute. The court, therefore, properly denied
their motion. (See, e.g., Symmonds v. Mahoney (2019) 31
Cal.App.5th 1096, 1103–1104 [noting court need not reach the
7 Similarly, the Xu defendants do not address the fifth cause of action
for violation of the Unfair Competition Law.
19
second prong of anti-SLAPP analysis where moving defendant
fails to establish the first prong].)
3. The court properly denied the Shen defendants’ anti-
SLAPP motion.
As noted, at the first step of the analysis under the anti-
SLAPP statute, the moving defendant must establish that the
plaintiff’s claims arise out of protected activity. (Baral, supra,1 Cal.5th at p. 384.) The Shen defendants moved to strike the
third cause of action for fraudulent concealment as well as
paragraphs 56, 58–61, 80–83, and 94–96 of the operative
complaint on the ground that the allegations concern conduct
protected under the anti-SLAPP statute and/or the litigation
privilege. The elements of the cause of action are “(1) a
misrepresentation (false representation, concealment, or
nondisclosure); (2) knowledge of falsity (or scienter); (3) intent to
defraud, i.e., to induce reliance; (4) justifiable reliance; and
(5) resulting damage. [Citation.]” (Robinson Helicopter Co., Inc. v.
Dana Corp., supra, 34 Cal.4th at p. 990.)
We first analyze the specific paragraphs the Shen
defendants sought to strike. As an initial matter, we note that
paragraph 56 does not include any allegations as to the Shen
defendants. Instead, that paragraph relates to Yan’s phone call to
plaintiff in which she threatened to use her influence with the
Immigration Service and Xu’s influence with the Chinese
Embassy and Chinese police if plaintiff continued in his efforts to
obtain a copy of the visa application.
The remaining paragraphs, however, do target actions
taken by the Shen defendants. Paragraphs 58–61, 81, and 95 all
20
relate specifically to the Shen statement.8 The other paragraphs
(80, 82–83, and 96) allege that the Shen statement was used to
intimidate plaintiff as part of the ongoing conspiracy among all
defendants to further the investment and immigration scheme.9
With respect to the Shen statement specifically, plaintiff alleges
that the content of the statement (threats to withdraw ZHL
Management’s visa application and threats to inform various
Chinese officials about plaintiff’s immigration status) was
designed to discourage him from continuing to seek a copy of the
visa application, i.e., to support the Xu defendants’ concealment
of the application.
The Shen defendants asserted that the allegations against
them relate to privileged communications protected under Civil
Code section 47, subdivision (b), which they claimed were
necessarily protected under section 425.16. But it is not always
8 The Shen statement, as translated, reads: “Based on the
investigation conducted by all parties, Yanbin Zang, a former C.E.O. of
ZHL Management, Inc., has been suspected of committing a serious
financial fraud when he was holding the position as a senior officer of
China Zhongpu Group (see the attachment), and now he has been
listed as a suspect wanted by the Chinese Police. In an attitude of
being responsible for ZHL Management, Inc., the Company has
removed Yanbin Zang from the position as C.E.O. of ZHL Management
Inc. in November 2019 and has submitted the request to the USCIS to
revoke his L-1 visa petition. At the same time, ZHL Management Inc.
will send a further notice to the Chinese Embassy and the Chinese
Consulates in the United States regarding Yanbin Zang’s current case
status. [¶] This declaration is hereby made! [¶] ZHL Management Inc.
CEO [¶] Shen Qi [¶] June 4, 2020[.]”
9 The Shen defendants’ appellate briefing also discusses paragraph 94
of the operative complaint. Their special motion to strike, however, did
not include a request to strike that paragraph.
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the case that conduct protected by the litigation privilege is also
protected under the anti-SLAPP statute. Although there is some
overlap between the litigation privilege and the anti-SLAPP
statute, “ ‘[t]he scope of the protections afforded to litigation-
related communications under the anti-SLAPP statute and that
afforded by the litigation privilege [citation] are not identical. The
two statutes “are substantively different statutes that serve quite
different purposes … .” ’ [Citation.]” (Bonni v. St. Joseph Health
System, supra, 83 Cal.App.5th at p. 301; cf. Flatley v. Mauro,
supra, 39 Cal.4th at p. 325 [“Civil Code section 47 does not
operate as a limitation on the scope of the anti-SLAPP statute.
The fact that Civil Code section 47 may limit the liability of a
party that sends to an opposing party a letter proposing
settlement of proposed litigation does not mean that the
settlement letter is also a protected communication for purposes
of section 425.16.”].)
Although the Shen defendants also claim that the Shen
statement is protected petitioning activity covered under the
anti-SLAPP statute, they offer no legal analysis to support that
contention. Nor does it appear from the face of the statute that
the Shen statement is, in fact, protected activity. Section 425.16,
subdivision (e), defines the conduct protected under the statute:
“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
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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.”
Plainly, the Shen statement is not included in the first
category, as the statement was not made to any official body.
Indeed, it is unclear from the face of the Shen statement and the
supporting declaration why or in what context the Shen
statement was made. The Shen statement is also not within the
scope of the third and fourth categories because the Shen
statement does not relate to a matter of public interest. (See, e.g.,
FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 145–
146 [“In articulating what constitutes a matter of public interest,
courts look to certain specific considerations, such as whether the
subject of the speech or activity ‘was a person or entity in the
public eye’ or ‘could affect large numbers of people beyond the
direct participants’ [citation]; and whether the activity ‘occur[red]
in the context of an ongoing controversy, dispute or discussion’
[citation], or ‘affect[ed] a community in a manner similar to that
of a governmental entity[.]’ ”].) Therefore, only the second
category remains, which protects “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.” (§ 425.16, subd. (e)(2).) “A
statement is ‘in connection with’ an issue under consideration by
a court in a judicial proceeding within the meaning of clause (2)
of section 425.16, subdivision (e) if it relates to a substantive
issue in the proceeding and is directed to a person having some
23
interest in the proceeding. [Citation.]” (Fremont Reorganizing
Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1167.) Here,
although the Shen statement references plaintiff’s visa
application, it is not at all clear that the statement relates to the
substantive issue under consideration in the pending
immigration matter. At most, the Shen statement merely
provides context for plaintiff’s allegations that defendants
engaged in a scheme to defraud him. Thus, the statement does
not fall within the ambit of this protected category. (See Baral,
supra, 1 Cal.5th at p. 394 [noting “[a]llegations of protected
activity that merely provide context, without supporting a claim
for recovery, cannot be stricken under the anti-SLAPP statute”].)
In sum, the Shen defendants failed to establish that the
operative complaint targets speech or conduct protected under
the anti-SLAPP statute. Accordingly, the court properly denied
their special motion to strike.
DISPOSITION
The orders denying the special motions to strike under
Code of Civil Procedure section 425.16 are affirmed. Plaintiff
shall recover his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
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EDMON, P. J.
EGERTON, J.
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