Case Number: B323878
Court: California Court of Appeal, Second Appellate District, Division One
Date Filed: 2025‑08‑31
Holding
The court held that Luo’s restraining‑order petition under CCP §527.6 lacked the minimal merit required to survive an anti‑SLAPP motion because she offered no evidence that Volokh’s writings constituted unlawful harassment, and because the relief she sought—prohibiting Volokh from identifying her by name—is not a remedy available under §527.6; consequently, the trial court’s grant of Volokh’s anti‑SLAPP motion was affirmed, and Luo’s appeals of the trial court’s orders precluding pseudonymous filing and denying her motion to strike exhibits were dismissed as non‑appealable.
Narrative
Lead.
When a law‑review professor used a plaintiff’s real name in a scholarly article on pseudonymous litigation, the plaintiff sued to keep that name hidden, only to have the California Court of Appeal reaffirm the primacy of First‑Amendment speech and the narrow scope of civil‑harassment restraining orders. Luo v. Volokh crystallizes the tension between a litigant’s privacy interests and the state’s policy of open courts, while also clarifying the procedural limits of appellate review of interlocutory orders.
Procedural backdrop.
Xingfei Luo—who also goes by Olivia Luo—filed two separate petitions for civil‑harassment restraining orders under CCP §527.6 in the Los Angeles County Superior Court (cases B324566 and B323878). Both petitions alleged that Professor Eugene Volokh, a noted First‑Amendment scholar, had “published” her real name in a 2022 Hastings Law Journal article and in three blog posts, thereby exposing her to threats, harassment, and even physical danger. The trial court denied the first petition, ordered Luo to proceed under her real name, and denied her motion to strike the exhibits she had filed in support of that petition. Volokh then moved to preclude Luo from proceeding pseudonymously; the court granted that motion. Luo appealed both the denial of her restraining order and the order barring pseudonymity.
In the second petition, Luo again sought a restraining order, this time demanding that Volokh remove any reference linking her name to “rape or sexual assault” and to cease drawing public attention to her identity. Volokh responded with a motion to dismiss under the anti‑SLAPP statute, CCP §425.16, arguing that his writings were protected speech on a matter of public interest. The trial court granted the anti‑SLAPP motion, dismissed Luo’s petition, and again barred her from using a pseudonym. Luo appealed the anti‑SLAPP ruling and the subsequent order precluding pseudonymity.
Issues presented.
- Whether Luo’s restraining‑order petition satisfied the “minimal merit” prong of the anti‑SLAPP analysis.
- Whether the relief Luo sought—prohibiting Volokh from identifying her by name—falls within the remedial scheme of CCP §527.6.
- Whether Luo’s appeals of the trial court’s minute orders (precluding pseudonymity and denying her motion to strike exhibits) are appealable under Cal. Code of Civ. Proc. §904.1.
Court’s analysis.
The appellate panel began by confirming that Volokh satisfied the first anti‑SLAPP prong: his writings concerned a public‑interest issue—pseudonymous litigation—and were therefore protected expression. The crux, therefore, was the second prong—minimal merit. Under Billauer v. Escobar‑Eck and Monster Energy Co. v. Schechter, a plaintiff must show a legally sufficient claim and a prima‑facia factual basis sufficient to survive a summary‑judgment‑like screening.
Luo’s record contained no evidence that Volokh’s articles or blog posts amounted to “unlawful violence, a credible threat of violence, or a knowing and willful course of conduct” as defined by §527.6(b). The court emphasized that the statute requires a “course of conduct” that “seriously alarms, annoys, or harasses” the petitioner and that serves “no legitimate purpose.” Volokh’s identification of Luo served a legitimate scholarly purpose: to illustrate how pseudonymity can affect the assessment of litigant credibility. The court rejected Luo’s speculation that Volokh’s writings “embolden” third parties, noting that speculation alone does not satisfy the clear‑and‑convincing standard required for a harassment restraining order.
Even assuming, arguendo, that harassment existed, the court found that the specific relief Luo sought—an injunction prohibiting Volokh from using her real name—was not among the remedies enumerated in §527.6. The statute is designed to enjoin conduct such as stalking, threatening calls, or physical proximity, not to compel a litigant to remain anonymous in public discourse. Accordingly, Luo’s petition lacked the minimal merit required to survive the anti‑SLAPP motion, and the trial court’s dismissal was affirmed.
Turning to the procedural challenges, the appellate panel applied Cal. Code of Civ. Proc. §904.1, which lists the categories of orders that are appealable. Minute orders that merely direct the preparation of a formal written order are not appealable; they are interlocutory and lack finality. The court cited Estate of Sapp and Herrscher v. Herrscher to support the view that Luo’s appeals of the minute orders precluding pseudonymity were untimely and non‑appealable. Likewise, the order denying Luo’s motion to strike exhibits did not fall within any statutory exception, nor did it meet the collateral‑order doctrine’s three‑prong test (finality, collateral nature, and direction of an act or payment). Because the trial court never entered a final order sealing or unsealing the exhibits, there was no appealable “act” for the appellate court to review. The panel therefore dismissed both procedural appeals.
Disposition.
The appellate court affirmed the trial court’s grant of Volokh’s anti‑SLAPP motion and dismissal of Luo’s restraining‑order petition (case B323878). It dismissed Luo’s appeals of the minute orders precluding pseudonymous filing in both cases and the appeal of the order denying her motion to strike exhibits (case B324566). Each party was awarded its own costs.
Closing analysis.
Luo v. Volokh underscores two pivotal points for California practitioners. First, the anti‑SLAPP statute remains a powerful shield for speech on matters of public concern, and courts will apply the “minimal merit” test rigorously when the plaintiff’s claim rests on alleged harassment that is, at best, indirect. Plaintiffs must produce concrete evidence of a threatening course of conduct; speculation that a third party might be inspired by protected speech will not suffice. Second, the decision clarifies the narrow window for appellate review of interlocutory orders. Minute orders directing the drafting of a final order are not appealable, and even where a party argues a collateral‑order exception, California courts continue to require a clear, final determination that directs an act or payment. Litigants seeking to protect privacy through pseudonymity must therefore either secure a protective order at the trial‑court stage or demonstrate a direct, actionable threat. The ruling reaffirms California’s commitment to open courts and robust First‑Amendment protection, while leaving open the question of whether future statutes might expand the remedial reach of §527.6 to cover non‑violent reputational harms.
Referenced Statutes and Doctrines
- Code of Civil Procedure §425.16 (anti‑SLAPP statute)
- Code of Civil Procedure §527.6 (civil‑harassment restraining orders)
- Code of Civil Procedure §904.1 (appealable orders)
- California Rules of Court §§2.550, 2.551 (sealing of court documents)
- First Amendment (freedom of speech)
- Anti‑SLAPP two‑prong test (protected activity; minimal merit) – Billauer v. Escobar‑Eck (2023) 5 Cal. App. 5th 904; Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781.
- Collateral‑order doctrine – Longobardo v. Avco Corp. (2023) 93 Cal. App. 5th 429.
- Harassment definition under §527.6(b) – Byers v. Cathcart (1997) 57 Cal. App. 4th 805; Yost v. Forestiere (2020) 51 Cal. App. 5th 509.
- Standard of review for anti‑SLAPP orders – de novo, Billauer; burden of proof shift, Olson v. Doe (2022) 12 Cal.5th 669.