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No Harassment in Publishing Litigant’s Actual Name—C.A.
Justice Bendix Says Anti-SLAPP Motion Was Properly Granted in Suit Seeking Restraining Order Against Law Professor for Failure to Refer to Plaintiff by Pseudonym in Publication
By Kimber Cooley, Staff Writer
A plaintiff who petitioned for a restraining order against a law professor based on his use of her actual name in a law review article addressing the use of pseudonyms failed to establish minimal merit to her request in response to the defendant’s anti-SLAPP motion as the publication is not harassment, Div. One of this district’s Court of Appeal has held.
Justice Helen I. Bendix authored the opinion, filed May 30 and certified for publication yesterday, which affirms orders by Los Angeles Superior Court Commissioner Laura Cohen granting the motion and dismissing the petition. Presiding Justice Frances Rothschild and Justice Victoria Gerrard Chaney joined in the opinion.
Appealing the dismissal was Xingfei Luo, who filed two separate petitions for a restraining order against Eugene Volokh, a professor of First Amendment jurisprudence at the UCLA School of Law. Both petitions were brought under Code of Civil Procedure §527.6 which provides procedures for obtaining restraining orders for victims of harassment.
Law Review Publication
Luo objected to Volokh’s use of her name in “The Law of Pseudonymous Litigation,” published July 2022 in the Hastings Law Journal. In the article, Volokh used Luo as an example of a litigant whose use of pseudonymity impedes investigation into past litigation, writing:
“Pseudonymization in one case can also lead to sealing in other cases in which the earlier case is relevant. To give one example, Xingfei Luo sued Paul Wang for libel and disclosure of public facts arising from Wang’s having accused Luo of falsely accusing a third party of rape. Luo, a frequent litigant who had been found in a past case to have acted evasively, was originally allowed to proceed pseudonymously; but the judge eventually reversed that decision.”
Claiming that his use of her name in the article, and on his blog “The Volokh Conspiracy,” amounted to harassment, she said:
“Volokh has published my info online and invited ha[t]ers to stalk, harass, threaten and commit violence against me. I continue to receive threatening and harassing phone calls and voice mails calling me cunt, slut, lying on men and indicating they will rape and kill me.”
Restraining Order Petitions
In her petitions, Luo requested, among other things, that Volokh be ordered to “[r]emove any remarks, comments, or references from any publicly available documents or articles authored by [Volokh] that connect [her] real name with rape or sexual assault.”
Los Angeles Superior Court Commissioner Hillary Gerber discharged the first petition in August 2022. Gerber denied Luo’s subsequent request to “strike” exhibits that identified the petitioner by name and ruled that she did not have the right to proceed pseudonymously.
In Luo’s second attempt at a restraining order, filed eight days after Gerber dismissed her first petition, Volokh filed an anti-SLAPP motion under Code of Civil Procedure §425.6 and a motion to preclude the petitioner from proceeding pseudonymously. Cohen granted both motions.
Luo appealed the orders precluding her ability to proceed pseudonymously in both cases, the order by Gerber denying her request to strike the exhibits, and the grant of the anti-SLAPP motion by Cohen. The two cases were consolidated on appeal.
Anti-SLAPP Motion
Bendix noted that “[e]valuating an anti-SLAPP motion requires a two-pronged inquiry.”
She explained that, under this inquiry, “[t]he moving party has the initial burden to show that the opposing party’s claim implicates activity protected by the anti-SLAPP statute” and then the burden shifts to the opposing party to demonstrate that the claim has probability of success.
The jurist pointed out that Luo “does not dispute Volokh demonstrated that her second petition for a restraining order arises out of conduct protected by the anti SLAPP statute” and the only question is whether Luo’s petition for a restraining order under §527.6 has “minimal merit.”
Not Harassment
Sec. 527.6 provides:
“ ‘Harassment’ is unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner.”
Bendix noted that actions serving a legitimate purpose will not be considered “harassment” under the section.
Turning to the conduct at issue, she opined:
“Volokh’s conduct is not within the ambit of section 527.6’s definition of harassment. Volokh’s identification of Luo in a law review article and on his blog was not unlawful violence or a credible threat of violence. There was no evidence that Volokh stalked Luo, made harassing phone calls, or sent her harassing correspondence. Volokh’s writings served a legitimate purpose—a discussion on how a litigant’s use of a pseudonym could affect open access to court proceedings and impede investigations into a litigant’s credibility.”
Under these circumstances, Bendix concluded that “Luo’s failure to cite to any evidence that Volokh harassed her within the meaning of section 526.7 is fatal to her argument that she demonstrated her restraining order petition has minimal merit.”
Future Harm
The justice also reasoned that “Luo fails to offer any theory supporting the relief her petition seeks.” She remarked that injunctive relief under the section is designed to prevent future harm and not to punish the restrained party.
She wrote that “[a] section 527.6 restraining order may enjoin a ‘party from harassing, intimidating, molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, abusing, telephoning…, destroying personal property, contacting, either directly or indirectly…, or coming within a specified distance of, or disturbing the peace of, the petitioner.’ ”
Bendix continued:
“Luo did not request the trial court enjoin Volokh from any such proscribed activities. Nothing in the statute precludes Volokh’s identification of Luo by name. Because the relief Luo seeks is not available under section 527.6, her petition for a restraining order lacks the minimal merit necessary to withstand Volokh’s anti-SLAPP motion.”
Not Appealable Orders
Finding that the remaining orders were not appealable, she commented that “[t]he right to appeal is statutory and a purported appeal from a nonappealable order must be dismissed because appellate courts have no jurisdiction to consider appeals that are not statutorily authorized.”
Turning to the orders in both cases precluding Luo from proceeding pseudonymously, Bendix declared “Luo’s appeals are from nonappealable minute orders that direct the preparation of formal written orders for signature by the court” but the record is devoid of evidence of any such further order.
As to Gerber’s order denying Luo’s motion to strike exhibits, she said:
“Despite having won below, Volokh contends we should review the court’s ruling refusing to strike exhibits because the ruling is akin to an order unsealing documents, which he contends is appealable as a collateral order….The trial court, however, never ordered the exhibits unsealed (or sealed), and the trial court’s minute order does not direct the performance of any act.”
Declining to treat the appeal as a petition for a writ of mandate, she said “we decline to exercise that discretion” and “[o]ur record is inadequate for review because it does not include the exhibits Luo sought to strike from the record.”
The case is Luo v. Volokh, 2024 S.O.S. 2063.
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