YI CHENG v. JIN CHUNG FAN & Another.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-3

YI CHENG

vs.

JIN CHUNG FAN & another. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Yi Cheng, appeals from an order of the

District Court denying her special motion to dismiss the

counterclaim of the defendant, Jin Chung Fan, for abuse of

process pursuant to the anti-SLAPP statute, G. L. c. 231, § 59H.

On appeal, the plaintiff claims that the judge erred in

concluding that she failed to meet her burden of establishing

that the counterclaim was based solely on her petitioning

activity. We affirm.

Background. The plaintiff and defendant each manage

competing Facebook groups that cater to the Taiwanese community

in the greater Boston area. The plaintiff, who is a realtor,

1 Ying Ying Jen, also known as Ying Ma. See note 2, infra.
filed suit alleging that the defendant committed libel, slander,

fraud, conspiracy, and intentional infliction of emotional

distress by employing negative tactics to encourage Facebook

users to leave plaintiff's Facebook group and join the

defendant's competing Facebook group. 2 The plaintiff also

alleges that the defendant conspired with a third party to

create a fictitious Facebook user and then extorted over $15,000

from the plaintiff. The defendant filed an answer denying the

allegations and filed a counterclaim for abuse of process

alleging that the plaintiff filed this lawsuit for an ulterior

purpose. 3 The abuse of process counterclaim is the subject of

2 We note that the plaintiff also named another defendant,
Ying Ying Jen, also known as Ying Ma or "Ms. Jen," who is not a
party to the appeal. The conspiracy count alleges that the
defendant conspired with Ms. Jen and concocted a false story to
harm the plaintiff's reputation with members of her own Facebook
group.

3 A counterclaim for abuse of process has three elements:
"(1) that process was used, (2) for an ulterior or illegitimate
purpose, (3) resulting in damage." 477 Harrison Ave. LLC. v.
JACE Boston, LLC, 477 Mass. 162, 168-169 (2017) (Harrison I).
An abuse of process claim, "has been described as a form of
coercion to obtain a collateral advantage, not properly involved
in the proceeding itself, such as the surrender of property or
the payment of money" (quotation and citation omitted). Id. at
169. See Millennium Equity Holdings, LLC v. Mahlowitz, 456
Mass. 627, 636 (2010) ("To sustain an abuse of process claim,
the fact finder must find that process was used to accomplish
some ulterior purpose for which it was not designed or intended,
or which was not the legitimate purpose of the particular
process employed" [quotation and citation omitted]). "For
example, a party's attempt to use an invocation of process to
extort an opposing party constitutes a substantial non-

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the anti-SLAPP motion to dismiss and the matter before us on

appeal.

Discussion. Under G. L. c. 231, § 59H, a party may file a

special motion to dismiss if "the civil claims, counterclaims,

or cross claims" against it are based solely on its exercise of

the constitutional right to petition. In Bristol Asphalt Co. v.

Rochester Bituminous Products, Inc., 493 Mass. 539 (2024), the

Supreme Judicial Court clarified the standard of review and

revised the framework used to assess special motions to dismiss

under G. L. c. 231, § 59H. 4 Describing the special motion to

dismiss as "strong medicine" the court noted that it should be

"employed in a limited context" to "expeditious[ly] eliminat[e]

. . . meritless lawsuits based on petitioning activities alone."

Id. at 555.

At the first stage of the framework, the moving party, here

the plaintiff, must make a "threshold showing through the

pleadings and affidavits that the claims are 'based on' the

[party's] petitioning activities alone and have no substantial

basis other than or in addition to the petitioning activity"

petitioning basis for an abuse of process claim." Harrison I,
supra at 169.

4 The court explained in a companion case that this revised
framework applies to all cases in which an anti-SLAPP motion or
appeal remains pending as of the issuance of the rescript in
Bristol Asphalt, supra. See Columbia Plaza Assocs. v.
Northeastern Univ., 493 Mass. 570, 578 (2024).

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(citation omitted). Bristol Asphalt Co., 493 Mass. at 555. If

the proponent cannot make this threshold showing, the special

motion to dismiss must be denied. If the proponent makes that

threshold showing, then the analysis turns to the second stage.

At the second stage, the burden shifts to the non-moving party

to show by a preponderance of evidence that the moving party was

engaged in "sham" petitioning (in other words, a showing of no

reasonable basis in fact or law) that resulted in harm. Id. at

557. We review the denial of the plaintiff's anti-SLAPP motion

de novo. Id. at 560-561.

Turning to the first stage, there is no doubt that the

"[c]ommencement of litigation is quintessential petitioning

activity." 477 Harrison Ave., LLC v. JACE Boston, LLC, 483

Mass. 514, 520 (2019) (Harrison II). When a claim or

counterclaim of abuse of process is met by a special motion to

dismiss, we must recognize that "[g]iven that the invocation of

process necessarily constitutes petitioning activity for the

purposes of the anti-SLAPP statute, . . . an actionable abuse of

process claim will always be, at least in part, based on a

special movant's petitioning activities." 477 Harrison Ave.

LLC. v. JACE Boston, LLC, 477 Mass. 162, 169 (2019) (Harrison

I). However, an abuse of process claim does not always mean

that the claim is based solely on the petitioning activity. In

other words, the anti-SLAPP statute "does not immunize a

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plaintiff from counterclaims that are 'filed in response to the

claim'; it does, however, provide respite from counterclaims

that are based 'solely on' that petitioning activity" (citation

omitted). Harrison II, supra at 525. The question that must be

answered is whether "the only conduct complained of is . . .

petitioning activity." Fabre v. Walton, 436 Mass. 517, 524

(2002).

The defendant's counterclaim alleges that the plaintiff

filed a baseless lawsuit against him first in the Superior Court

and then in District Court. As explained above, the conduct of

filing the lawsuit in the Superior and District Courts is

protected petitioning activity. Harrison II, 483 Mass. at 520.

The pleadings and supporting affidavit, however, also allege

that the filing of the lawsuit was a continuation of a Facebook

feud between the parties and that the plaintiff engaged in a

pattern of behavior intended to harass the defendant and to

punish him for managing a rival Facebook group. Finally, the

counterclaim alleges that the plaintiff made defamatory

statements against the defendant, falsely claimed that the

defendant had extorted money from the plaintiff and suggested

that the defendant had committed crimes, all for the purpose of

having more followers of her Facebook group and less for the

defendant. The counterclaim, therefore, is not solely based

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upon the plaintiff's petitioning activity, and the special

motion to dismiss was properly denied. 5

Order denying special motion
to dismiss affirmed.

By the Court (Meade, Walsh &
Smyth, JJ. 6),

Clerk

Entered: December 11, 2024.

5 The plaintiff's request for costs of appeal is denied.

6 The panelists are listed in order of seniority.

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