California State Court Grants Anti-SLAPP Motion To Strike In Defamation Suit Filed By Man Called Rapist By Victim's Family On Social Media
Yee Xiong was a student at UC Davis. On July 9, 2012, Xiong went to a party at Lang Her's apartment. Xiong drank a number of drinks and fell asleep. Xiong claimed when she woke up early the next morning, Her was pinning her down and raping her. Her repeatedly changed his story, ultimately claiming Xiong had consented to sexual relations but he had not penetrated Xiong, despite the presence of semen found during hospital examination. On April 14, 2014, Her was arrested and charged with rape of an intoxicated person and rape of an unconscious person. The case proceeded to trial, and on May 20, 2015, a mistrial was declared after the jury was unable to reach a verdict. A second trial in February 2016, also ended in a mistrial. Prior to a third trial, Her pleaded no contest to the felony of assault by means of force likely to produce great bodily injury on May 13, 2016.
On May 20, 2016, Xiong was served with a lawsuit filed by Her against Xiong and family members Nao Xiong, Ger Xiong, and Van Xiong in the California Superior Court for Yuba County. The case was assigned to Judge Stephen W. Berrier. Her claimed the Xiong family posted false and defamatory statements on social media, including posts stating Her was a rapist. Her asserted claims of defamation per se, libel per se, slander per se, and fraud. Her sought damages for mental and emotional distress as well as punitive damages in the amount of $ 4,000,000.
On July 19, 2016, Her was sentenced to one year in jail and agreed to participate in sex offender counseling and register as a sex offender for his five-year term of probation. Xiong was served with the lawsuit as she was leaving the courthouse following Her's sentencing on July 19, 2016.
On Sept. 6, 2016, the defendants filed a motion to strike pursuant to California's Anti-SLAPP statute, CCP Section 425.16. The defendants argued Her's claims were subject to the statute because they were meritless claims that targeted constitutionally protected speech. The defendants asserted Her's claims fell within the statute because the social media posts were made in connection with an issue under consideration by an executive and a judicial body, sharing Xiong's story on social media websites was an act in furtherance of the defendants' free speech rights, and her rape was an issue of public interest. The defendants also argued Her could not prevail on his defamation claims because he could not prove the defendants' statements were false, the posts were not actionable, and republication of a photograph did not amount to libel.
On Oct. 3, 2016, a hearing was held on the motion. According to the Sacramento Bee, it took the court less than 30 minutes to grant the motion, strike all of Her's claims, and award the defendants their attorneys' fees and costs.
Plaintiff was represented by David Collins of Collins Law Firm. Defendants were represented by Martin Ruano, McGregor W. Scott, and Eric R. Olah of Orrick, Herrington & Sutcliffe LLP.
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