Filed 6/6/14 Lee v. Li 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

LAN LEE,                                                             H037209
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. 1-10-CV171476)

         v.

YUNCHUN LI,

         Defendant and Appellant.


         Defendant and appellant Yunchun Li told the Federal Bureau of Investigation
(FBI) and the chief executive officer (CEO) of NetLogic Microsystems (NetLogic) that a
NetLogic employee, plaintiff and respondent Lan Lee, was transferring NetLogic’s
company protected data to China.1 Afterwards, Lan became the subject of a federal
investigation for economic espionage and theft of trade secrets. During the resulting
federal criminal trial, Yunchun testified that she had no basis for her assertion that Lan
had stolen trade secrets. Lan was acquitted of all but one of the charges levied against
him, and the prosecution later dismissed the remaining charge with prejudice. Because of
the criminal investigation and trial, Lan lost his job and spent much of his savings on his
legal defense.
         Subsequently, Lan filed a civil lawsuit against Yunchun for defamation, libel per
se, interference with prospective economic advantage, intentional infliction of emotional

         1
       Due to the similarity of the parties’ surnames, we will refer to them by their first
names for clarity. No disrespect is intended.
distress, and invasion of privacy. Yunchun filed a special motion to strike Lan’s first
four causes of action (defamation, libel per se, interference with prospective economic
advantage, intentional infliction of emotional distress) pursuant to the provisions of
California’s anti-SLAPP2 statute (Code Civ. Proc., § 425.16).3 The trial court denied the
motion and Yunchun appealed. We conclude that the illegality of Yunchun’s actions was
not conclusively established by uncontroverted evidence, but Lan demonstrated he had a
possibility of prevailing on his defamation claims. However, Lan has not demonstrated a
probability of prevailing on his other claims. We therefore reverse the trial court’s order
in part.
                      FACTUAL AND PROCEDURAL BACKGROUND
       The facts and allegations of the appeal are taken from the pleadings, declarations,
and exhibits submitted to the trial court in support of and in opposition to the anti-SLAPP
motion.
       The Federal Criminal Trial
       Lan is an electrical engineer who worked in microchip design since 1988. Lan
met Yuefei Ge, Yunchun’s husband, in 1997 when both were employed at Sun
Microsystems. In 2001, Lan began working at NetLogic as an engineer. Sometime after,
Ge also started working at NetLogic as an engineer. In 2002, Ge recruited Lan to work
on a startup company making microchips to be used in network routers. Ge, Ge’s friend
XiaoDong Yang, and Lan incorporated a company named Sico Microsystems, Inc. (Sico)
in Delaware.


       2
         “SLAPP” stands for “ ‘strategic lawsuits against public participation.’ ”
(Navellier v. Sletten (2002) 29 Cal.4th 82, 85 (Navellier).)
       3
         Further unspecified statutory references are to the Code of Civil Procedure.
Lan’s fifth cause of action for invasion of privacy was not part of Yunchun’s anti-SLAPP
motion.


                                             2
       In an effort to jumpstart the company, Lan obtained a “spice model” from Taiwan
Semiconductor Manufacturing Company (TSMC). Lan describes a spice model as a
“text file that describes parameters used in electronic design for manufacturing a
microchip.” Meanwhile, Ge obtained a “data sheet” from NetLogic, which Lan describes
as “descriptions of functions and features of a microchip” that are “used for sales and
marketing purposes, and provide instructions for users, and are therefore generally not
treated as confidential.”
       Throughout 2002 and 2003, Lan attempted to obtain financing for Sico, including
through the Chinese “863” program. The superseding indictment charging plaintiff and
Ge with federal crimes described the 863 program as a funding plan created by the
People’s Republic of China to encourage creation of technology with an emphasis on
military applications.
       Yunchun testified during the federal trial that she felt stressed because of her
husband’s efforts on Sico. Earlier, Ge had told Yunchun that he might need to quit his
job at NetLogic if working on Sico became too time consuming. Ge had also used some
of his own money to purchase a plane ticket to China and a calling card for Lan.
Yunchun testified that she felt that her husband may have been “brainwashed” by Lan,
and she felt that her husband was not taking their family’s financial situation into account
by continuing to work on Sico.
       In September 2002, Yunchun created an e-mail account under a pseudonym and
sent a message to Ron Jankov, CEO of NetLogic. The e-mail stated: “One of your
employees is actively looking for ways to start his own company in the same field. He
might recruit people from your company too. Name is Lan Lee. Be careful.” Jankov
responded and asked for additional details. Yunchun told Jankov that “[Lan] was in
China talking to VCs [venture capitalists] this past weekend.” At trial, Yunchun asserted
that she wrote the e-mail in the hopes that someone would stop her husband from

                                              3
continuing to work on Sico. She further stated that the information in the e-mail was the
“angle” she had come up with to get Jankov’s attention, because she did not think he
would be concerned about her family issues. Yunchun testified that she omitted her
husband’s name from the e-mail since she did not want him to get in trouble.
       In January 2013, an anonymous woman, later identified as Yunchun, called an FBI
tip line and reported that someone named “Lan Liole” who worked at NetLogic was
“exchanging some type of company protected technological information” with an
individual in China. At trial, Yunchun explained that she called the FBI because she
believed if she informed the federal authorities they might stop Sico from progressing.
She also testified that at the time she called the FBI, she did not have any information that
would indicate Ge or Lan intended to transfer technology to China. Yunchun made a
second call to the FBI the next day, reiterating that she believed plaintiff was conducting
some type of intellectual property or technology transfer with China. The FBI began
investigating the tip.
       Yunchun e-mailed Jankov a third time in March 2003. The e-mail stated: “They
are running out of hope. It’s not likely for him [Lan] to get funding.” Later, she noticed
an e-mail on Ge’s computer in May that led her to believe that Sico may get funding after
all. Yunchun forwarded the Sico-related e-mail to Jankov, and wrote, “Looks like Lan
found one company in Beijing to pay Sico (Lan’s company) to co-develop[] a network
processor in China. I just don’t want to see Net[L]ogic’s IP [to] become Sico’s IP one
day. The Beijing company gave them a contract to sign. They are negotiating the
terms.” Yunchun testified that at the time she wrote the e-mail, she had no reason to
believe that Lan or her husband intended to use NetLogic’s intellectual property to design
their microchips. She further testified that she had never heard them discuss plans to use
NetLogic’s intellectual property to start their company.



                                             4
       The FBI met with some executives at NetLogic and learned of the e-mails that had
been sent by Yunchun. In July 2003, FBI agents went to Lan’s home and questioned him
about his work at NetLogic and about Sico. Lan agreed to let the FBI agents inspect his
computer, and the agents found the spice model he had taken earlier. The FBI agents told
Lan that the spice model was evidence of a crime. Lan was fired from his position at
NetLogic the next day and was unable to find employment until he was hired by Intel
Corporation in March 2004.
       On September 26, 2007, the United States Attorney’s Office filed a superseding
indictment against Ge and Lan, charging both with a count of conspiracy, two counts of
economic espionage, and two counts of theft of trade secrets. The trial began in October
2009 and lasted until November 2009. The jury returned a “not guilty” verdict with
respect to two of the counts (a count of economic espionage and a count of theft of trade
secrets with respect to TSMC). The trial court entered a judgment of acquittal on those
two counts. It also entered a judgment of acquittal on the count of conspiracy and the
second count of economic espionage after considering Lan’s motion for acquittal. The
trial court ordered a new trial as to the second count of theft of trade secrets as to
NetLogic. The government dismissed this remaining charge in October 2010.
       The Civil Lawsuit
       In October 2010, Lan filed a civil lawsuit against Yunchun in state court alleging
causes of action for defamation, libel per se, intentional interference with prospective
economic advantage, intentional infliction of emotional distress, and invasion of privacy.4
Lan’s complaint alleged that Yunchun had sent false accusations that he was recruiting
NetLogic employees to work on Sico to the CEO of NetLogic. Lan further alleged that


       4
        Lan also alleged causes of action against his former employer, Intel Corporation.
These additional causes of action against Intel are not a part of this appeal.


                                               5
Yunchun had contacted the FBI anonymously and had falsely reported that he was
transferring intellectual property and technology to China.
       The Anti-SLAPP Motion
       Yunchun filed a special motion to strike four of Lan’s causes of action
(defamation, libel per se, interference with prospective economic advantage, and
intentional infliction of emotional distress) under section 425.16.5 She argued that these
causes of action primarily arose out of her exercise of protected petitioning activity, as
her communications with the FBI were absolutely privileged under Civil Code section
47, subdivision (b).
       Lan filed an opposition to the motion to strike, arguing that the statements
Yunchun made to the FBI were not protected by the anti-SLAPP statute because they
were illegal under title 18 United States Code section 1001(a)(3), which makes it a crime
to knowingly and willfully “makes any materially false, fictitious, or fraudulent statement
or representation” in “any matter within the jurisdiction of the executive, legislative, or
judicial branch of the Government of the United States.” (18 U.S.C. § 1001(a).) Lan
also argued that he could easily make a prima facie showing of malicious prosecution
which is exempt from the Civil Code section 47, subdivision (b) privilege.
       The trial court denied the special motion to strike on June 7, 2011. In its order, the
trial court held that the causes of action in Lan’s complaint arose from protected activity,
Yunchun’s reporting of possible criminal activity to law enforcement. (Siam v.
Kizilbash (2005) 130 Cal.App.4th 1563 (Siam).) However, the court concluded that
because section 425.16 expressly does not apply to illegal activity, the anti-SLAPP
motion should be denied. (Flatley v. Mauro (2006) 39 Cal.4th 299, 316 (Flatley).) The
court asserted that the evidence conclusively established that Yunchun had violated title
       5
        Lan also alleged a cause of action of invasion of privacy against Yunchun. This
cause of action was not part of Yunchun’s special motion to strike.


                                              6
18 United States Code section 1001 by falsely reporting to the FBI that Lan had
transferred intellectual property/technology to China. The court reasoned that
“[Yunchun] cannot benefit from otherwise illegal activity because one aspect of her
statement is not demonstrably false.” Yunchun appealed.
                                        DISCUSSION
   1. Motion to Strike Portions of Defendant’s Opening Brief
       First, we address Lan’s motion to strike portions of Yunchun’s opening brief. Lan
argues that Yunchun has improperly cited to matters outside the appellate record. We do
not consider documents or matters that were either not presented before the trial court or
are not a part of the record on appeal. Parties should refrain from referring to matters
outside the record in their briefs. (Pulver v. Avco Financial Services (1986) 182
Cal.App.3d 622, 632.) If a brief fails to comply with these requirements, we may either
strike the brief or disregard the noncompliance. (Cal. Rules of Court, rule 8.204(e).)
       Yunchun’s opening brief contains citations and factual assertions not found in the
record on appeal, as she cites to portions of the testimony from Lan’s federal criminal
trial that were not before the trial court. After filing her opening brief, Yunchun
requested that we take judicial notice of the documents cited in her brief on April 12,
2012. We denied Yunchun’s request for judicial notice on May 3, 2012. Accordingly,
we will disregard the portions of her opening brief that cite to matters outside the record
and will deny Lan’s motion to strike.
   2. The Denial of the Anti-SLAPP Motion
       A. Overview of the Anti-SLAPP Law
       The anti-SLAPP statute provides a “procedural remedy to dispose of lawsuits that
are brought to chill the valid exercise of constitutional rights.” (Rusheen v. Cohen (2006)
37 Cal.4th 1048, 1055-1056.) Consequently, “the anti-SLAPP statute is to be construed
broadly.” (Padres L.P. v. Henderson (2003) 114 Cal.App.4th 495, 508.) In evaluating an

                                             7
anti-SLAPP motion, the trial court must engage in a two-step process. (Equilon
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon).) It first
determines “whether the defendant has made a threshold showing that the challenged
cause of action is one arising from protected activity.” (Navellier, supra, 29 Cal.4th at p.
88.) A defendant meets this burden by demonstrating that the plaintiff’s action is
premised on statements or conduct taken “ ‘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,’ as defined in the [anti-SLAPP] statute. (§
425.16, subd. (b)(1).)” (Equilon, supra, at p. 67.) If the defendant makes the requisite
showing, the burden shifts to the plaintiff to demonstrate a probability of prevailing on
the claim. (Ibid.) “Only a cause of action that satisfies both prongs of the anti-SLAPP
statute--i.e., that arises from protected speech or petitioning and lacks even minimal
merit--is a SLAPP, subject to being stricken under the statute.” (Navellier, supra, at p.
89.)
       B. Standard of Review
       We review the trial court’s decision de novo. (Flatley, supra, 39 Cal.4th at p.
325.) In so doing, we consider “the pleadings, and supporting and opposing affidavits
stating the facts upon which the liability or defense is based.” (§ 425.16, subd. (b)(2).)
We do not make credibility determinations or compare the weight of the evidence
presented below. Instead, we accept the opposing party’s evidence as true and evaluate
the moving party’s evidence only to determine if it has defeated the opposing party’s
evidence as a matter of law. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th
260, 269, fn. 3.) The court “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.)

                                              8
       C. First Prong of the Anti-SLAPP Analysis: Protected Activity
       Yunchun insists that the gravamen of Lan’s causes of action against her
(defamation, libel per se, intentional infliction of emotional distress, and interference with
economic prospects) arise out of her exercise of protected petitioning activity. In order to
address these claims, we must analyze the two categories of statements made by Yunchun
that are the basis of Lan’s causes of action: (1) the statements to the FBI left on the
anonymous tip line and (2) the e-mails sent to Jankov, the CEO of NetLogic.
              1. Statements to the FBI
       Here the parties do not dispute that reporting of criminal activity to law
enforcement constitutes protected activity under the anti-SLAPP statute, and we agree
with their conclusion.6 (Siam, supra, 130 Cal.App.4th at pp. 1569-1570.) However, Lan
argues that Yunchun’s reporting of criminal activity to the FBI is not protected under the
anti-SLAPP statute because her statements were illegal as a matter of law. Since “the

       6
          Yunchun also argues on appeal that the statements she made to the FBI are
absolutely privileged under Civil Code section 47, subdivision (b) and therefore
constitute protected petitioning activity under the anti-SLAPP statute. Yunchun has
conflated two different legal concepts: the litigation privilege under Civil Code section
47 and the anti-SLAPP statute under section 425.16. “[T]he anti-SLAPP statute is not
implicated, and cannot be invoked by a defendant, unless the defendant’s conduct
underpinning a plaintiff’s cause of action involved an 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.’ [Citations.] . . . . Neither the
federal nor the state constitutional right of petition or free speech encompass a right to
file a false criminal report. Indeed, if the right of petition or free speech encompassed a
right to file a false criminal report, then laws criminalizing such reports would be
inherently unconstitutional. The determination whether a privilege established by statute
immunizes [defendant] from civil liability for making a false criminal report is a wholly
separate issue from the determination whether [a defendant’s] conduct in the first
instance was an act in furtherance of [his or her] constitutional rights.” (Lefebvre v.
Lefebvre (2011) 199 Cal.App.4th 696, 703 (Lefebvre).) In short, Yunchun’s statements
to the FBI may be privileged under Civil Code section 47, subdivision (b), but this does
not necessarily mean that it is protected activity under the anti-SLAPP statute.


                                              9
purpose of section 425.16 is to prevent the chilling of ‘the valid exercise of the
constitutional rights of freedom of speech and petition for the redress of grievances’ by
the ‘abuse of the judicial process,’ ” (Flatley, supra, 39 Cal.4th at p. 313) if the assertedly
protected activity is illegal it cannot be “protected by constitutional guarantees of free
speech and petition.” (Id. at p. 317.)
       The illegality exception to section 425.16 articulated by Flatley is narrow. The
party opposing the anti-SLAPP motion must either show that the other party concedes to
the illegal activity, or that the alleged illegality is conclusively established by
uncontroverted evidence. (Flatley, supra, 39 Cal.4th at p. 320.) In Flatley, our Supreme
Court determined that section 425.16 did not apply to the defendant’s speech, which it
determined to be extortion as a matter of law. (Flatley, supra, at p. 333.) There the
defendant did not dispute that he sent the letters that the court later determined was
extortion as a matter of law, nor did he contest the contents. (Id. at pp. 328-329.) The
defendant also did not contest the version of the telephone calls he allegedly made as set
forth in the plaintiff’s opposition to the motion to strike. (Ibid.) As a result, the court
determined that the evidence was uncontroverted. (Ibid.) The same result was achieved
by the Second District in Lefebvre, supra, 199 Cal.App.4th at pages 705 through 706.
The appellate court in Lefebvre determined that since the defendant did not contest the
illegality and falsity of a criminal report she filed, it was conceded that her actions were
not “protected petitioning activity” under section 425.16. (Flatley, supra, at p. 325.)
       However, in a case where a factual dispute concerning the illegality of the
statements are at issue, the Flatley exception is inapplicable. (Seltzer v. Barnes (2010)
182 Cal.App.4th 953, 965-967 (Seltzer).) For example, in Seltzer, the plaintiff failed to
conclusively establish the illegality of settlement negotiations at issue as there were
several factual disputes, including the defendant’s intent, during the proceedings. (Id. at
p. 965.) “[C]onduct that would otherwise be protected by the anti-SLAPP statute does

                                               10
not lose its coverage simply because it is alleged to have been unlawful.” (Hansen v.
Department of Corrections & Rehabilitation (2008) 171 Cal.App.4th 1537, 1545.) The
party opposing the special motion to strike bears the burden that no factual dispute exists
as to the illegality of the conduct underlying the complaint. (Seltzer, supra, at p. 965.)
       Lan claims that it is conclusively established from uncontroverted evidence that
Yunchun’s statements to the FBI were illegal as a matter of law. It is undisputed that
Yunchun made two calls to the FBI through the anonymous tip line. The notes from her
first call indicated that she stated that someone named “Lan Liole” who worked at
NetLogic Microsystems was “exchanging some type of company protected technological
information” with an individual in Shanghai, and that she believed the activity was
illegal. In the second call, Yunchun stated that Lan had traveled to China twice in the
past year, had a contact in China, and was engaging in “intellectual property/technology
transfer” with China.
       In order to determine if the illegality of Yunchun’s statements are conclusively
established with uncontroverted evidence, we must preliminarily determine what
constitutes a violation of title 18 United States Code section 1001. The federal appellate
and district courts have described a violation of title 18 United States Code section 1001
in various ways. Lan, in his opposition to the anti-SLAPP motion before the trial court,
stated that the elements of a violation of title 18 United States Code section 1001 are that
“the defendant made a statement; the statement was false, fictitious, or fraudulent as the
defendant knew; the statement was made knowingly and willfully; the statement was
within the jurisdiction of the federal agency; and the statement was material,” citing to
U.S. v. Harrod (10th Cir. 1992) 981 F.2d 1171, 1175.
       It is unclear from the language of cases such as Harrod whether falsity is a
required element of the offense. However, other courts have specifically clarified that
falsity is an element. The Third Circuit, for example, has stated that “[s]ection 1001

                                             11
proscribes two different types of conduct: concealment of material facts and false
representations. The latter requires proof of actual falsity, whereas concealment must be
established through evidence of willful nondisclosure by means of a ‘trick, scheme, or
device.’ ” (U.S. v. Curran (3rd Cir. 1994) 20 F.3d 560, 566.) The Ninth Circuit also
appears to ascribe falsity as a required element of the offense. In U.S. v. Jiang, the Ninth
Circuit explained that the elements of a violation of title 18 United States Code section
1001 are that the defendant (1) made a statement, (2) the statement was false, (3) the
statement was made with the specific intent, (4) the statement was material, and (5) the
statement was within the agency’s jurisdiction. (U.S. v. Jiang (9th Cir. 2007) 476 F.3d
1026, 1029.)
       While we acknowledge there is some ambiguity stemming from the various
definitions of a violation of title 18 United States Code section 1001, it seems that falsity
is likely a required element of the offense. Therefore, in order for Yunchun’s statements
to be illegal as a matter of law, Lan must conclusively show with uncontroverted
evidence that the statements Yunchun made to the FBI were false. We conclude that Lan
has not met this burden.
       In support of his argument that Yunchun’s statements were illegal, Lan attached
excerpts of Yunchun’s testimony during the federal criminal trial. The excerpted
transcripts of Yunchun’s testimony show that she testified that she was the one who made
the two phone calls to the FBI. She further testified that at the time she made the calls,
she did not possess any information indicating that Lan intended to transfer technology to
China. Yunchun had also earlier testified that she initiated the contact with the CEO of
NetLogic in order to stop her husband from working on the startup, as she believed the
work was taking his attention away from the family.7 Lan also attached excerpts of
       7
        Yunchun’s former testimony, attached as exhibits to plaintiff’s opposition to the
anti-SLAPP motion, is hearsay evidence that may be admitted against her during a trial
(continued)
                                             12
testimony from other witnesses at his federal criminal trial. These witnesses testified that
the “spice model” found on Lan’s computer was not protected company information and
did not bear the marks of protected data and also testified that these documents were not
necessarily protected intellectual property.
       Yunchun, however, does not concede the illegality of the statements; she asserts
that the statements were either true or expressions of her opinion.8 She points to the e-
mail she sent to Jankov that forwarded a conversation between Lan and a contact in
China as evidence that Lan was engaging in some “intellectual property/technology”
transfer with China. She also asserts that her statements were merely opinions that were
later corroborated by the FBI’s investigation and the United States Attorney’s Office
filing of criminal charges against Lan.
       Yunchun also attached to her anti-SLAPP motion the order made by the federal
trial court granting Lan’s motion for acquittal in part. In this order, the judge stated that
the government had presented evidence that Lan and Yunchun’s husband were design
engineers at NetLogic. The government had also presented evidence that they both


(Evid. Code, § 1220) and is therefore properly considered in an anti-SLAPP motion.
(Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 26.)
        8
          Lan insists that Yunchun is judicially estopped from claiming that her statements
to the FBI were actually true, given her testimony at the federal criminal trial. The
doctrine of judicial estoppel “precludes a party from taking inconsistent positions in
separate proceedings where the position in the first proceeding was adopted by the court
or accepted by it as true.” (The Swahn Group, Inc. v. Segal (2010) 183 Cal.App.4th 831,
835.) By its very nature, judicial estoppel is not applicable to bar defendant from
asserting that her statements are true, as it applies to a party who has taken two
inconsistent positions. Yunchun was not a party to the underlying federal criminal trial
and the doctrine of judicial estoppel is therefore inapplicable. Lan also argues in his brief
that defendant has forfeited this argument on appeal because she fails to address and
analyze whether her statements to the FBI violated title 18 United States Code section
1001. Nonetheless, Yunchun does argue in her opening brief that her statements to the
FBI were true, which refutes Lan’s claim that she knowingly made false statements.


                                               13
possessed technical documents taken from NetLogic’s premises and there was evidence
that NetLogic treated this information as a trade secret. With respect to whether the
government had presented sufficient evidence of economic espionage, the court
concluded that the government had presented evidence that Lan and Yunchun’s husband
intended to use the information obtained from NetLogic in a private company in China.
There was also some evidence in the record indicating that Lan was contemplating
transferring intellectual property rights to a partner in China. Yunchun also attached
portions of testimony from the federal criminal trial, including testimony by the
investigating FBI agent who stated that Yunchun’s husband had told the authorities that
Lan had traveled to China to market the business plan. The FBI agent also testified that
Lan and Yunchun’s husband drafted a revised Sico business plan using portions of the
NetLogic data sheet.
       Certainly, Lan provided compelling evidence of the illegality of Yunchun’s
statements to the FBI. After all, Yunchun testified at Lan’s federal trial that she had no
basis for the allegations she made to the FBI. However, this testimony is not conclusive,
uncontroverted evidence that her statements were false and therefore illegal. Because the
illegality of Yunchun’s statements to the FBI is not conclusively shown and is factually
disputed, her statements are protected petitioning activity under the anti-SLAPP statute.9
(See Siam, supra, 130 Cal.App.4th at pp. 1569-1570.)


       9
         Furthermore, contrary to Lan’s claims, we do not simply take the evidence of
Yunchun’s trial testimony as “true” and ignore her contrary evidence. In the second
prong of the anti-SLAPP analysis, we accept the opposing party’s evidence as true and
evaluate the moving party’s evidence only to determine if it has defeated the opposing
party’s evidence as a matter of law. (Soukup v. Law Offices of Herbert Hafif, supra, 39
Cal.4th at p. 269, fn. 3.) Our determination of whether the speech in question is illegal as
a matter of law is a preliminary step in our anti-SLAPP analysis. In this step, we must
determine if the statements in question are conclusively established by uncontroverted
evidence to be illegal, as articulated in Flatley. (Flatley, supra, 39 Cal.4th at p. 320.)
(continued)
                                             14
              2. Statements to the NetLogic CEO
       Next, Yunchun claims that her statements to the CEO of NetLogic are protected
petitioning activity, because statements concerning the possibility of economic espionage
that could benefit China are “conduct in furtherance of the exercise of the constitutional
right of . . . free speech in connection with a public issue or an issue of public interest.”
(§ 425.16, subd. (e)(4).)
       What constitutes an issue of “public interest” within the context of the anti-SLAPP
statute has been broadly construed. A matter of “public interest” can include “not only
governmental matters, but also private conduct that impacts a broad segment of society
and/or that affects a community in a manner similar to that of a governmental entity.
[Citations.] ‘ “[M]atters of public interest . . . include activities that involve private
persons and entities, especially when a large, powerful organization may impact the lives
of many individuals.” ’ ” (Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th
468, 479.) However, if the matter 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.)
       Yunchun asserts that Integrated Healthcare Holdings, Inc. v. Fitzgibbons (2006)
140 Cal.App.4th 515 (IHHI) is instructive. The defendant in IHHI sent an e-mail to

        Additionally, the jury’s decision to acquit Lan of some of the charges in his
federal criminal trial does not necessarily mean that it found that Lan did not commit the
acts alleged, or that Yunchun’s allegations were indeed false. It only means that the jury
found sufficient doubt as to one, or more, of the required elements of the offenses Lan
was charged with.


                                               15
members of a medical executive committee at a hospital expressing concern that the
company that was seeking to purchase the hospital (IHHI) was heading for bankruptcy.
(Id. at p. 520.) IHHI filed a lawsuit against the defendant, asserting various causes of
action including defamation. (Id. at p. 521.) The defendant filed a special motion to
strike under section 425.16, asserting that IHHI’s causes of action were based on his
protected speech and petitioning activity. (IHHI, supra, at p. 521.) The trial court denied
the anti-SLAPP motion and the appellate court reversed the denial. (Id. at p. 534.) The
appellate court reasoned that the defendant’s e-mail was a public issue and a matter of
public interest since “IHHI’s acquisition and operation of four Orange County hospitals
was the subject of public hearings held by both the California Senate and the Orange
County Board of Supervisors, and discussed in numerous articles in newspapers and
other periodicals.” (Id. at p. 523.)
       Yunchun maintains that her statements to Jankov were in the public interest,
because we must view her statements against the backdrop of the government’s sustained
efforts to protect the competitive standing of American companies. We disagree. Courts
have not precisely defined the boundaries of what constitutes an issue of public interest in
the context of an anti-SLAPP motion. However, most courts have limited the
interpretation of a statement of public issue to those statements concerning a person or
entity that is within the public eye (Sipple v. Foundation for Nat. Progress (1999) 71
Cal.App.4th 226, 239 [statements involving a “nationally known figure”]), statements or
conduct that could impact numerous individuals beyond the parties (Damon v. Ocean
Hills Journalism Club, supra, 85 Cal.App.4th at p. 479 [statements would affect more
than 3,000 members]), or statements that would otherwise have a widespread interest in
the public (M.G. v. Time Warner, Inc. (2001) 89 Cal.App.4th 623, 629 [statements arising
from Sports Illustrated cover story about child molestation in youth sports]).



                                             16
       This issue was contemplated by our colleagues at the First District in Rivero v.
American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105
Cal.App.4th 913 (Rivero). In Rivero, a worker filed a lawsuit against various entities,
including a union, alleging various causes of action including libel and slander. The
worker alleged that the union distributed documents containing false information that
alleged he solicited bribes, hired family members, practiced favoritism, harassed
employees, and was abusive. (Id. at pp. 916-917.) The union filed an anti-SLAPP
motion, in part arguing that statements criticizing an unlawful workplace activity concern
a public issue. (Id. at p. 925.) The appellate court disagreed, noting that the union’s
statements concerned one worker who had not been subject to public attention or media
coverage and that the individuals involved in and affected by the statements were limited
in number. (Id. at p. 924.) The Rivero court further acknowledged that if it adopted the
union’s argument, “nearly every workplace dispute would qualify as a matter of public
interest,” and that a better-reasoned policy to adopt was to find that “unlawful workplace
activity below some threshold level of significance is not an issue of public interest, even
though it implicates a public policy.” (Ibid.)
       The appellate court also rejected the union’s other attempts to characterize the
statements as concerning public issues. It concluded that even though the worker was
employed at a publicly financed institution, not every allegedly inappropriate use of
public funds constitutes a matter of public interest. (Rivero, supra, 105 Cal.App.4th at p.
925.) It further rejected the union’s argument that the statements somehow related to the
greater union membership’s “generalized concern regarding disrespectful supervision and
of the broader issue of abusive supervision throughout the University of California
system.” (Ibid.)
       Like the union in Rivero, Yunchun argues that her statements are protected under
the anti-SLAPP statute because they must be viewed as comments on the broader

                                             17
problem of safekeeping the competitiveness of domestic businesses and protecting trade
secrets, which are public issues. Yunchun’s argument on this ground fails for the same
reasons articulated in Rivero. Widespread theft of trade secrets and maintaining the
competitive edge of American companies in the global market may be an issue of public
concern. However, Yunchun’s statements to Jankov were not about this broader issue.
Her statements concerned the theft of one company’s intellectual property by one
employee. Yunchun does not otherwise demonstrate that Lan’s alleged actions would
have a wider impact, or that it would involve more members of the public. Furthermore,
the alleged intellectual property theft was not an issue that received widespread publicity,
nor did it reach the type of “threshold level of significance” as articulated in Rivero that
would elevate it to a matter of public concern. (Rivero, supra, 105 Cal.App.4th at p.
924.)
        IHHI, which Yunchun relies on, also does not support her position. The plaintiff’s
comments in IHHI were determined to be concerning a matter of public interest because
the hospital’s acquisition had been the subject of public hearings and press coverage.
(IHHI, supra, 140 Cal.App.4th at p. 523.) Contrary to Yunchun’s claims, no such public
interest exists here. Therefore, Yunchun’s statements to Jankov are not protected under
the anti-SLAPP statute, as she has not shown that they are in connection with an issue of
public interest. (§ 425.16, subd. (e)(3).)

        D. Second Prong of the Anti-SLAPP Analysis: Probability of Prevailing on
           the Merits

        Yunchun has met her burden to show that Lan’s causes of action arise from some
protected activity (her statements to the FBI). She has not met her burden to show that
her statements to Jankov are protected. However, Lan’s causes of action could still be
subject to a motion to strike because they would constitute mixed causes of actions. A
mixed cause of action is “subject to section 425.16 if at least one of the underlying acts is

                                             18
protected conduct, unless the allegations of protected conduct are merely incidental to the
unprotected activity.” (Salma v. Capon (2008) 161 Cal.App.4th 1275, 1287, citing to
Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133
Cal.App.4th 658, 672.) Therefore, in order to survive Yunchun’s anti-SLAPP motion,
the burden is on Lan to demonstrate he has a probability of prevailing on his claims.
       In order to establish a probability of success, a plaintiff must demonstrate he or
she has a legally sufficient claim. (Taus v. Loftus (2007) 40 Cal.4th 683, 713-714.) “
‘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.” ’ ” (Ibid.) In
doing so, we do not weigh the credibility of probative strength of the competing
evidence. We accept the opposing party’s evidence as true and evaluate the moving
party’s evidence only to determine if it has defeated the opposing party’s evidence as a
matter of law. (Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at p. 269, fn.
3.)
       Notably, Lan did not argue below that he had a probability of prevailing on any of
the claims subject to Yunchun’s anti-SLAPP motion. Instead, he argued that the
“gravamen of his case (malicious institution of criminal proceedings) is not barred by
privilege under Civil Code § 47.” Lan then asserted that he had made a prima facie
showing of malicious prosecution which is exempt from the litigation privilege and that
should the trial court reach the second prong of the anti-SLAPP analysis he should be
allowed to amend his complaint to allege a cause of action for malicious prosecution. On
appeal, Lan has similarly argued that he had made a prima facie showing of malicious




                                             19
prosecution. However, he also raises for the first time that he satisfied his burden to
demonstrate he had a probability of prevailing on his defamation claims.10
       On appeal, a judgment or order will be affirmed if it is correct on any theory,
regardless of the trial court’s reasons. (Bailon v. Appellate Division (2002) 98
Cal.App.4th 1331, 1339.) Accordingly, parties may raise a new argument on appeal in
order to establish the trial court’s ruling was correct, “ ‘unless doing so would unfairly
prejudice appellant by depriving him or her of the opportunity to litigate an issue of fact.’
” (Ibid., italics omitted.) We review the trial court’s denial of Yunchun’s anti-SLAPP
motion de novo, so we will address this issue even if the trial court did not. (Roberts v.
Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 615-616.)
              1. Defamation and Libel Per Se
       “Defamation requires the intentional publication of a false statement of fact that
has a natural tendency to injure the plaintiff’s reputation or that causes special damage.”
(Burrill v. Nair (2013) 217 Cal.App.4th 357, 383 (Burrill).) “The elements of a
defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged,
and (5) has a natural tendency to injure or causes special damage.” (Wong v. Jing (2010)
189 Cal.App.4th 1354, 1369.) Libel is defamation that is written. (Ibid.) If a statement
is defamatory on its face, it is libelous per se, and actionable without proof of special
damages. (Burrill, supra, at p. 382.) “[F]alse statements charging the commission of a
crime or tending directly to injure a plaintiff in respect to his or her profession by
imputing dishonesty or questionable professional conduct are defamatory per se.” (Id. at
p. 383.)


       10
          Lan’s complaint alleged a cause of action for defamation and a cause of action
for libel per se. His respondent’s brief does not specify if he is arguing that he has a
probability of prevailing on his defamation claim, his libel per se claim, or both. Given
the relatedness of these claims, we address them jointly.


                                              20
       Lan claims that the statements Yunchun made to the FBI and to Jankov were
defamatory in nature. Lan alleges that the statements Yunchun made to the FBI asserting
that he was illegally exchanging company protected information with an individual
named Qian Zhang in China were false. He also alleges that Yunchun’s statement to
Jankov that she did not want to see “NetLogic’s IP become Sico’s IP one day” was false
and defamatory.
       Yunchun contends that her statements were either the truth or her own opinion,
which are not actionable defamation. However, statements of opinion do not necessarily
enjoy blanket protection from defamation actions. “[W]here an expression of opinion
implies a false assertion of fact, the opinion can constitute actionable defamation.
[Citation.] The ‘crucial question of whether challenged statements convey the requisite
factual imputation is ordinarily a question of law for the court. [Citation.]’ [Citation.]
‘Only once the court has determined that a statement is reasonably susceptible to such a
defamatory interpretation does it become a question for the trier of fact whether or not it
was so understood. [Citations.]’ [Citation.] The question is ‘ “whether a reasonable fact
finder could conclude the published statement declares or implies a provably false
assertion of fact . . . .” ’ ” (Summit Bank v. Rogers (2012) 206 Cal.App.4th 669, 696.)
       “In determining whether a publication has a defamatory meaning, the courts apply
a totality of the circumstances test to review the meaning of the language in context and
whether it is susceptible of a meaning alleged by the plaintiff.” (Balzaga v. Fox News
Network, LLC (2009) 173 Cal.App.4th 1325, 1337.) “In determining whether statements
are of a defamatory nature, and therefore actionable, ‘ “a court is to place itself in the
situation of the hearer or reader, and determine the sense or meaning of the language of
the complaint for libelous publication according to its natural and popular construction.” ’
” (Morningstar, Inc. v. Superior Court (1994) 23 Cal.App.4th 676, 688.)



                                              21
       At one point during her e-mail exchanges with Jankov, Yunchun wrote that she
did not “want to see Net[L]ogic’s IP become Sico’s IP one day.” This statement carries
the implication that Lan was taking NetLogic’s intellectual property with the intent to use
it for Sico and also implies that Lan was stealing NetLogic’s trade secrets, which would
constitute libel per se. (Barnes-Hind, Inc. v. Superior Court (1986) 181 Cal.App.3d 377,
385 [finding that “[p]erhaps the clearest example of libel per se is an accusation of
crime.”].) The same is true of her statements to the FBI alleging that Lan was
exchanging company protected secrets, which also implies that Lan is committing
intellectual property theft. These statements imply provably false factual assertions and
could therefore constitute the basis of a defamation action.
              2. Probability of Prevailing on the Defamation Claims11
       Next, we must ascertain whether Lan made a prima facie showing that he could
prevail on his claims. Preliminarily, we address Yunchun’s argument that the statements
constituting Lan’s defamation actions are privileged. The issue of privilege is “ ‘relevant
to the second step in the anti-SLAPP analysis in that it may present a substantive defense
a plaintiff must overcome to demonstrate a probability of prevailing.’ ” (Feldman v.
1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1485.) If both categories of
statements are privileged, Lan will have no probability of prevailing on his claims.
       Yunchun contends that her statements to the FBI, even if they were made falsely
and maliciously, are protected under the litigation privilege codified under Civil Code
section 47, subdivision (b). (Siam, supra, 130 Cal.App.4th at pp. 1569-1570; Hagberg v.

       11
         Unlike our analysis in part C, whether Lan has sufficiently alleged a prima facie
showing of falsity in the second prong of the anti-SLAPP analysis does not require that
he demonstrate falsity with uncontroverted, conclusive evidence. As previously noted,
we do not weigh credibility of witnesses or resolve factual issues when determining if
Lan has demonstrated a probability of prevailing. (Balzaga v. Fox News Network, LLC,
supra, 173 Cal.App.4th at p. 1336.)


                                             22
California Federal Bank (2004) 32 Cal.4th 350.) We agree that her report of a crime to
the FBI is absolutely privileged under Civil Code section 47, subdivision (b).
       Second, Yunchun argues that her statements to Jankov are also privileged under
the qualified common interest privilege codified at Civil Code section 47, subdivision (c).
Civil Code section 47, subdivision (c) “extends a conditional privilege against defamation
to statements made without malice on subjects of mutual interests. [Citations.] This
privilege is ‘recognized where the communicator and the recipient have a common
interest and the communication is of a kind reasonably calculated to protect or further
that interest.’ [Citation.] The ‘interest’ must be something other than mere general or
idle curiosity, such as where the parties to the communication share a contractual,
business or similar relationship or the defendant is protecting his own pecuniary interest.
[Citation.] Rather, it is restricted to ‘proprietary or narrow private interests.’ ” (Hawran
v. Hixson (2012) 209 Cal.App.4th 256, 287.)
       “ ‘One authority explains the statutory interest as follows: (1) The “interest”
applies to a defendant who “is protecting his own pecuniary or proprietary interest.” (2)
The required “relation” between the parties to the communication is a contractual,
business or similar relationship . . . . (3) The “request” referred to must have been in the
course of a business or professional relationship.’ ” (Kashian v. Harriman (2002) 98
Cal.App.4th 892, 914.) The defendant has the burden to show that the statement was
privileged. The burden then shifts on the plaintiff to show that the defendant made the
statement with malice. (Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th
90, 108.) Whether the statements are privileged is a question of law. (Ibid.; Hui v.
Sturbaum (2014) 222 Cal.App.4th 1109, 1118-1119.)
       Civil Code section 48 provides “that with respect to statements falling within
[Civil Code] section 47[, subdivision] (c), ‘malice is not inferred from the
communication.’ ” (Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1204.) “For purposes

                                             23
of this statutory privilege, malice has been defined as ‘ “a state of mind arising from
hatred or ill will, evidencing a willingness to vex, annoy or injure another person.” ’ ”
(Ibid.) Here Lan submitted Yunchun’s testimony at his federal criminal trial where she
admitted she contacted Jankov without any basis for her allegations. Yunchun also
testified at the trial that she had contacted Jankov hoping that someone would stop Lan
and her husband from continuing work on Sico, because she was concerned about the toll
working on the startup was taking on her family. If credited, this evidence could allow a
rational trier of fact to make a finding of malice, rendering the qualified common interest
privilege inapplicable to the statements Yunchun made to Jankov.
       Accordingly, the statements Yunchun made to the FBI are privileged under Civil
Code section 47, subdivision (b), but the statements she made to Jankov are not
necessarily privileged under Civil Code section 47, subdivision (c). We must therefore
determine whether Lan submitted the evidence necessary to make the “ ‘ “minimum level
of legal sufficiency and triability” ’ ” needed to satisfy the second prong of the anti-
SLAPP statute based solely on the e-mails Yunchun sent to Jankov implying that Lan
was stealing intellectual property. (Castleman v. Sagaser (2013) 216 Cal.App.4th 481,
490.) We conclude that he has.
       Lan submitted evidence that there was a publication by attaching copies of the e-
mails Yunchun sent to Jankov, including the one where she wrote that she did not want to
see “NetLogic’s IP become Sico’s IP one day.” Lan also submitted evidence that the
statement Yunchun made implying that he was taking NetLogic’s intellectual property
for use in his own startup company was false and defamatory. As previously described,
Lan attached excerpts of the trial testimony to his opposition to the anti-SLAPP motion.
This testimony contains evidence that Yunchun had no basis or knowledge about Lan
transferring NetLogic’s intellectual property. Lan’s declaration, attached to his
opposition to the anti-SLAPP motion, asserted that the data sheet he took from NetLogic

                                             24
was not confidential property, and that it was made publicly available on NetLogic’s Web
site. Furthermore, he asserted that in his experience in the industry, data sheets were not
typically treated as confidential. Lan also included excerpts of testimony from experts at
trial who opined that NetLogic failed to adequately identify its data sheets as protected
trade secrets. Given that the statements Yunchun made implied Lan was committing
theft of intellectual property, it was defamatory per se if false. (Burrill, supra, 217
Cal.App.4th at pp. 385-386.)
       Lan has therefore satisfied his burden to allege facts and demonstrate that his
causes of action for defamation and libel per se are legally sufficient and supported by a
prima facie showing of facts. Yunchun may have submitted evidence to the contrary,
asserting that Lan may have taken information that was considered trade secret by
NetLogic, but we do not weigh the credibility of evidence. In this stage of the anti-
SLAPP analysis we accept Lan’s evidence as true. (Soukup v. Law Offices of Herbert
Hafif, supra, 39 Cal.4th at p. 269, fn. 3.) Lan has made the minimal showing necessary
to defeat Yunchun’s motion to strike on these claims.
       Notably, defamation was just one of several causes of action in Lan’s complaint
against Yunchun. Lan also filed a cause of action for intentional interference with
prospective economic advantage, and intentional infliction of emotional distress. Both of
these causes of action were based on Yunchun’s statements to the FBI and to Jankov.
However, Lan has not argued that he has established a probability of prevailing on these
causes of action. “If an appellant fails to raise a point in an appellate brief, we may treat
the issue as waived; we do so here.” (Raining Data Corp. v. Barrenechea (2009) 175
Cal.App.4th 1363, 1372.) Therefore, Lan has not demonstrated he has a probability of
prevailing on his claim for interference with prospective economic advantage and
intentional infliction of emotional distress. Since these claims were also based on
Yunchun’s statements to the FBI, which are protected under section 425.16, they are

                                              25
subject to the motion to strike as a mixed cause of action. (Salma v. Capon, supra, 161
Cal.App.4th 1275.)

       E. Amending Complaint to Allege Cause of Action of Malicious Prosecution

       Lan argues that he should be given the opportunity to amend his pleadings to state
a cause of action for malicious prosecution.
       Appellate courts have noted that “section 425.16 provides no mechanism for
granting anti-SLAPP motions with leave to amend.” (Martin v. Inland Empire Utilities
Agency (2011) 198 Cal.App.4th 611, 629.) Therefore, “[t]rial courts should either grant
or deny such motions in toto, i.e., without leave to amend, prior to ruling on any pending
demurrers. A proper ruling on the anti-SLAPP motion would, in most cases, obviate the
need to rule on the demurrer at all or, at the very least, in its entirety.” (Ibid.)
       Some appellate courts have given plaintiffs the opportunity to amend their
pleadings when ruling on anti-SLAPP motions. In Nguyen-Lam v. Cao (2009) 171
Cal.App.4th 858 (Nguyen-Lam), the trial court determined that the plaintiff in the case
had a probability of prevailing on her claim for defamation based on the evidence
submitted by both parties. (Id. at p. 862.) The trial court therefore allowed the plaintiff
to amend her complaint to plead actual malice, which she had failed to include in her
original complaint but was present in the evidence she submitted. (Ibid.) The Fourth
District affirmed the trial court’s judgment. The court distinguished the situation
presented in Nguyen-Lam from other cases, including Simmons v. Allstate Ins. Co. (2001)
92 Cal.App.4th 1068 (Simmons). In Simmons, the court concluded that “permitting an
amendment to thwart the defendant’s initial prima facie showing of protected activity
would undermine section 425.16’s ‘quick dismissal remedy.’ ” (Nguyen-Lam, supra, at
p. 870, citing Simmons, supra, at p. 1073.) The Simmons court opined that “[i]nstead of
having to show a probability of success on the merits, the SLAPP plaintiff would be able
to go back to the drawing board with a second opportunity to disguise the vexatious

                                               26
nature of the suit through more artful pleading. . . . [¶] By the time the moving party
would be able to dig out of this procedural quagmire, the SLAPP plaintiff will have
succeeded in [the] goal of delay and distraction and running up the costs of his
opponent.” (Simmons, supra, at pp. 1073-1074.)
       The Nguyen-Lam court distinguished Simmons on several grounds. First, the court
noted that unlike the Simmons plaintiff, Nguyen-Lam’s amendment would not “attempt to
void defendant’s showing on the first prong of the anti-SLAPP inquiry.” (Nguyen-Lam,
supra, 171 Cal.App.4th at p. 870.) The court further explained that the “plaintiff’s
amendment had nothing to do with defendant’s assertion his statements were made in
connection with his right of petition or free speech. Rather, assuming that showing had
been made, and in conjunction with her burden on the second prong to show a probability
of prevailing on the merits, plaintiff sought to amend the complaint to plead specifically
that defendant harbored the requisite actual malice as shown by the evidence presented
for the hearing on the strike motion.” (Id. at pp. 870-871.)
       The court determined that because Nguyen-Lam demonstrated a probability of
prevailing at trial if she could amend her complaint to include malice, “ ‘[d]isallowing an
amendment would permit defendant to gain an undeserved victory, undeserved because it
was not what the Legislature intended when it enacted the anti-SLAPP statute.’ ”
(Nguyen-Lam, supra, 171 Cal.App.4th at p. 873.) The court then concluded that when
“the strike opponent has demonstrated the requisite probability of success in showing
such malice, as here, her complaint falls outside the purpose of the anti-SLAPP statute--
indeed, it is not a SLAPP suit at all. Simply put, the Legislature did not intend to shield
statements shown to be malicious with an unwritten bar on amendment in the
circumstances here. Consequently, the trial court did not err in permitting [Nguyen-Lam]
to amend her complaint to plead actual malice in conformity with the proof presented at
the hearing on the strike motion.” (Ibid.)

                                             27
       The Nguyen-Lam plaintiff sought to amend her complaint to plead a necessary
element of one of her causes of actions, not to plead a new cause of action. Such a
scenario was contemplated in Navellier v. Sletten (2003) 106 Cal.App.4th 763 (Navellier
II). There, the plaintiff had filed a breach of action against a defendant for fraud and
breach of contract. The defendant filed a special motion to strike the complaint under
section 425.16, which was denied. The First District initially affirmed on the basis that
the first prong of the anti-SLAPP test was not satisfied. The Supreme Court reversed,
finding that the first prong was satisfied, and ordered the First District to address the
second prong. The First District concluded that the plaintiffs did not satisfy the second
prong since they did not establish a probability of prevailing on their claims. (Navellier
II, supra, at pp. 766-768.) The plaintiff’s cause of action for fraud was barred by the
litigation privilege (Civ. Code, § 47), as they arose from the defendant’s counterclaims
filed in federal court. (Navellier II, supra, at pp. 769-770.)
       The Navellier II plaintiff, like Lan, argued that they should be given the
opportunity to amend their complaint to add a cause of action for malicious prosecution,
which would not be barred by the litigation privilege. The First District disagreed,
asserting that “a plaintiff cannot use an eleventh-hour amendment to plead around a
motion to strike under the anti-SLAPP statute.” (Navellier II, supra, 106 Cal.App.4th at
p. 772.) The court noted that nothing had prohibited the plaintiffs from timely alleging a
malicious prosecution claim against the defendants, as the federal judgment had been
final before the motion to strike was filed. (Id. at p. 773.)
       Lan asserts that all of the facts necessary for a cause of action of malicious
prosecution are present in his complaint and in the materials supporting his opposition to
the anti-SLAPP motion. He therefore argues that he should be allowed leave to amend
his complaint to allege a cause of action of malicious prosecution. However, Nguyen-
Lam is distinguishable; the plaintiff there sought to amend her complaint to plead a

                                              28
necessary element, malice, to one of her alleged causes of actions. Lan, like the plaintiff
in Navellier II, seeks the opportunity to amend his complaint to plead an entirely new
cause of action. Nothing prohibited Lan from pleading a cause of action for malicious
prosecution at the outset of the litigation, as the federal trial against Lan concluded prior
to his filing of a civil lawsuit against Yunchun. Under the reasoning set forth in Navellier
II, we reject Lan’s contention that he should be allowed leave to amend his complaint to
assert a new cause of action for malicious prosecution.
                                        DISPOSITION
       The order of the superior court denying the special motion to strike is reversed.
The court is directed to enter a new order granting Yunchun Li’s Code of Civil Procedure
section 425.16 motion with respect to Lan Lee’s causes of action for interference with
prospective economic advantage and intentional infliction of emotional distress and
denying the Code of Civil Procedure section 425.16 motion with respect to Lan Lee’s
causes of action for defamation and libel per se. The parties are to bear their own costs
on appeal.




                                              29
                         Premo, J.




WE CONCUR:




    Rushing, P.J.




    Elia, J.




                    30
