Four Dimensions, Inc. v. Wang CA6

Filed 10/30/26 Four Dimensions, Inc. v. Wang CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR DIMENSIONS, INC., H053331 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. 24CV449015) v. LOUIS WANG et al., Defendants and Appellants. This appeal is from the denial of a special motion to strike under Code of Civil Procedure section 425.16, the anti-SLAPP statute. (Subsequent undesignated statutory references are to the Code of Civil Procedure.) Plaintiff Four Dimensions, Inc. (Four Dimensions) is a semiconductor technology company based in the Bay Area. After its founder died, Four Dimensions’ board of directors decided to explore a sale, and defendants Louis Wang and Sherry Li attempted to acquire the company. Negotiations between Four Dimensions and defendants fell through, and Four Dimensions instead entered into negotiations with a Chinese company, Wuxi Zhuohai Technology Co. Ltd. (WZH). However, after Wang warned WZH about the regulatory obstacles it would face as a foreign entity trying to acquire a United States semiconductor company, WZH declined to pursue the acquisition. Four Dimensions sued Wang and Li for tortious interference and other torts, and defendants in turn filed a motion to strike under the anti-SLAPP statute, arguing that Wang’s warnings to WZH and then to Four Dimensions and its shareholders were protected activities under the statute because they concerned matters of public interest: namely, national security risks and regulatory restrictions imposed on foreign entities acquiring domestic semiconductor companies. The trial court denied the motion, reasoning that defendants failed to demonstrate that Four Dimensions’ claims arose out of protected activity under the anti-SLAPP statute. Defendants appeal this ruling. As explained below, we affirm. National security and the regulation of foreign acquisition of U.S. semiconductor technology are issues of public interest. However, Wang’s warnings do not fall within the anti-SLAPP statute’s definition of protected activity. Because the warnings evidenced in the record were cursory, and they were privately made for private purposes and remained private, the warnings are not covered by the anti-SLAPP statute’s catchall provision (§ 425.16, subd. (e)(4)), which applies only to speech and other conduct that contributes to the public discourse on issues of public interest. (See, e.g., FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 149-152 (FilmOn).) The pending official proceedings provision (§ 425.16, subd. (e)(2)) is also inapplicable because WZH decided not to acquire Four Dimensions (due to Wang’s warnings), and there were no official proceedings pending concerning the acquisition. Defendants’ motion to strike was properly denied, and the order denying the motion is affirmed. I. BACKGROUND In reviewing an order denying a motion to strike under the anti-SLAPP statute, 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)),” accepting as true evidence presented by the opposing party. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.) 2  A. Four Dimensions Four Dimensions produces semiconductor probing systems used to test the conductivity of electronic components in computers and other electronic systems and devices. Four Dimensions’ customers include semiconductor manufacturers, defense contractors, and government agencies, including the former Department of Defense. Four Dimensions was founded in 1978 by James T.C. Chen. Mr. Chen passed away in February 2021, and in 2023 the company’s board of directors authorized its management to explore a sale. B. Louis Wang and Sherry Li Louis Wang is a tech investor. In 2023, he was a partner in and director of a Singapore-based middle market, specialty private equity firm, Asia-IO Partners International Pte., Ltd. (Asia-IO). In June 2023, Four Dimensions and Asia-IO executed a nondisclosure agreement, which Wang signed on Asia-IO’s behalf. In the agreement, Asia-IO promised to use confidential information obtained from Four Dimensions solely in evaluating, negotiating, and consummating a potential business transaction with the company. Under the nondisclosure agreement, Wang received confidential information from Four Dimensions, and in October 2023 Asia-IO and Four Dimensions entered into a non-binding letter of intent in which Four Dimensions agreed to deal exclusively with Asia-IO. However, in December 2023 Wang informed Four Dimensions that Asia-IO had decided to withdraw from the proposed acquisition. According to Wang, Asia-IO was concerned that Four Dimensions had not obtained a formal export classification from the Commerce Department’s Bureau of Industry and Security, and an attempted acquisition of Four Dimensions by a foreign entity would be reviewed, and possibly blocked, by the Committee on Foreign Investment in the United States (CFIUS), a federal executive branch committee chaired by the Secretary of the Treasury. (See 50 U.S.C. § 4565.) 3  However, Wang informed Four Dimensions that his wife Sherry Li and her American-registered limited liability company, Omni Ventures Partners, LLC (Omni), were interested in acquiring Four Dimensions. For several months, Omni conducted due diligence on Four Dimensions, and in February 2024 it made a proposal for acquiring the company. However, in March 2024, after Wang contacted Four Dimensions’ employee-shareholders about the potential transaction without the company’s authorization, Four Dimensions terminated negotiations with Omni. Nevertheless, in May 2024, Wang submitted a new term sheet for an Omni acquisition. However, Four Dimensions informed Wang that it was talking with other potential buyers. C. WZH In June 2024, Four Dimensions entered into discussions with WZH, a Chinese company allegedly with financial backing from Chinese state-controlled investors tied to Chinese semiconductor and military-industrial policies. In July 2024, WZH sent Four Dimensions a draft letter of intent proposing terms for acquiring Four Dimensions. Four Dimensions responded with comments, and in mid-July the parties agreed that Four Dimensions’ counsel would draft a more formal terms sheet. However, that same month, Wang spoke with WZH representatives. According to Wang, these discussions “were strictly limited to publicly available information concerning general CFIUS scrutiny and regulatory compliance matters, without any explicit mention of 4D [Four Dimensions],” though he admitted commenting on “WZH’s regulatory risks associated with a potential acquisition of a U.S. semiconductor company.” The following month WZH withdrew from the proposed acquisition of Four Dimensions. One of the reasons that WZH gave for doing so was that it had been 4 contacted by Wang who “made numerous comments about why [WZH] should not do the transaction and shared … Four Dimensions’ Confidential Information.” D. The Proceedings Below In October 2024, Four Dimensions sued Wang and Li as well as Asia-IO. Four Dimensions asserted five claims: breach of the nondisclosure agreement Wang signed for Asia-IO, breach of the implied covenant of good faith and fair dealing, intentional interference, negligent interference, and aiding and abetting a breach of fiduciary duty. Specifically, Four Dimensions alleged that Wang and Asia-IO breached the nondisclosure agreement and the covenant of good faith in that agreement by disclosing confidential information to WZH and to Li and Omni, as well as failing to return or destroy such information. Four Dimensions also alleged that Wang and Li both intentionally and negligently interfered with WZH’s potential acquisition of Four Dimensions by improperly sharing confidential information and by disparaging Four Dimensions’ business and management. Finally, Four Dimensions alleged that Wang and Li aided and abetted a breach of fiduciary duty by a Four Dimensions employee in revealing the potential transaction with WZH. Wang and Li (but not Asia-IO) filed a motion to strike under the anti-SLAPP statute. In support of the motion, defendants submitted a declaration from Wang, who, among other things, averred that in July 2024 he participated in a call with WZH representatives in which he discussed “general CFIUS scrutiny and regulatory compliance matters” and “WZH’s regulatory risks associated with a potential acquisition of a U.S. semiconductor company.” Based on this declaration, defendants asserted that Four Dimensions’ complaint targeted speech concerning matters of public interest: “national security risks and regulatory compliance issues arising from a proposed sale of 4D [Four Dimensions]” to WZH. Defendants argued that this speech was a protected activity under the anti-SLAPP statute because it was covered by the statute’s catchall provision for “speech on matters of public interest” and by the pending official 5 proceedings provision for matters “under active consideration by government regulatory bodies.” Defendants did not identify specific allegations or claims protected by the anti-SLAPP statute, nor did they explain how any of Four Dimensions’ claims arise out of protected activity. The trial court denied the motion to strike. The court ruled that defendants had failed to satisfy their threshold burden of showing that Four Dimensions’ claims arise out of protected activity because defendants did not demonstrate that they engaged in protected activity under the anti-SLAPP statute. The court ruled the catchall provision inapplicable because defendants failed to show which, if any, of Four Dimensions’ claims arise out of Wang’s warnings to WZH or to establish that those warnings contributed to public debate over those issues. The trial court also ruled the pending official proceedings provision inapplicable because defendants failed to show that Wang’s warnings concerned an issue under consideration in an official proceeding. Wang and Li filed timely notices of appeal from the denial of their anti-SLAPP motion. (See § 425.16, subd. (i) [authorizing interlocutory appeals from the denial of anti-SLAPP motions].) II. DISCUSSION On appeal, defendants Wang and Li argue that Four Dimensions’ claims against them arise out of the warnings that Wang gave to WZH and that these warnings are protected activity under the anti-SLAPP statute’s catchall and pending official proceedings provisions. We review de novo the trial court’s rulings on these issues. (See, e.g., Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067 (Park).) However, before doing so, we briefly review the anti-SLAPP statute. A. The Anti-SLAPP Statute “The anti-SLAPP law was enacted ‘to protect nonprofit corporations and common citizens “from large corporate entities and trade associations” in petitioning government.’ ” (FilmOn, supra, 7 Cal.5th at p. 143.) This statute combats “strategic 6 lawsuits against public participation (SLAPPs): ‘lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.’ ” (Geiser v. Kuhns (2022) 13 Cal.5th 1238, 1242 (Geiser), quoting § 425.16, subd. (a).) “In the paradigmatic SLAPP suit, a well-funded developer limits free expression by imposing litigation costs on citizens who protest, write letters, and distribute flyers in opposition to a local project.” (FilmOn, at p. 143.) Because the goal of a SLAPP suit is “to deplete ‘the defendant’s energy’ and drain ‘his or her resources’ ” rather than to prevail on a claim, claims asserted in SLAPP suits generally are meritless. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.) Accordingly, the anti-SLAPP statute “provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral).) The statute authorizes a defendant to file a special motion to strike any claim “arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States … or the California Constitution in connection with a public issue,” and such a claim must be stricken unless “there is a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).) Anti-SLAPP motions are considered on an expedited schedule (§ 425.16, subd. (f)), during which discovery is generally stayed (§ 425.16, subd. (g)), and successful movants are entitled to attorney’s fees and costs (§ 425.16, subd. (c)(1)). Anti-SLAPP motions are evaluated using a “ ‘summary-judgment-like procedure’ ” that proceeds in two steps. (Barry v. State Bar of California (2017) 2 Cal.5th 318, 324.) In the first step, the defendant “bears the burden of establishing that the challenged allegations or claims ‘aris[e] from’ protected activity in which the defendant has engaged. [Citations.]” (Park, supra, 2 Cal.5th at p. 1061.) In the second step, if the defendant satisfies its threshold burden of showing that claims arise from protected activity, the burden shifts to the plaintiff to demonstrate that the challenged 7 claims are both legally sufficient and supported by evidence sufficient to support a favorable judgment. (Baral, supra, 1 Cal.5th at p. 396.) The anti-SLAPP statute identifies four categories of protected activity. (§ 425.16, subd. (e) [defining an “ ‘act in furtherance of a person’s right of petition or free speech … in connection with a public issue’ ” to include four categories of activity]; see Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 620 (Rand Resources).) These categories are: “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (§ 425.16, subd. (e).) The first two categories of protected activity—statements made in official proceedings and statements made in connection with pending official proceedings—do not expressly require that covered statements concern a public issue. Instead, these provisions “ ‘equate[] a public issue with the authorized official proceeding to which it connects.’ ” (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1117 (Briggs), italics omitted.) The third category requires a statement concerning “an issue of public interest” made in “a place open to the public or a public forum.” (§ 425.16, subd. (e)(3).) The fourth category—the catchall provision—does not require that statements be made in any particular place and, thus, may apply to private communications in some circumstances. (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 903 (Wilson); Navellier v. Sletten (2002) 29 Cal.4th 82, 91.) However, because the catchall provision refers to “other” conduct, the Supreme Court has held that 8 it “encompasses conduct and speech similar to what is referenced in section 425.16, subdivision (e)(1) through (3).” (FilmOn, supra, 7 Cal.5th at p. 144.) B. The Catchall Provision Following defendants, we begin with the catchall provision. Defendants contend that this provision covers Wang’s warnings to WZH and to Four Dimensions and its shareholders about the regulatory obstacles it would face in attempting to acquire Four Dimensions because these warnings implicate matters of public interest and contribute to public discourse concerning those matters. We agree on the first point: Wang’s warnings implicate matters of public interest. However, we disagree on the second point: As explained below, we conclude that Wang’s warnings did not contribute to public discourse on an issue of public interest and therefore the catchall provision is inapplicable. 1. Section 425.16, Subdivision (e)(4) Under the catchall provision, “any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest” is protected activity under the anti-SLAPP statute. (§ 425.16, subd. (e)(4).) In applying the catchall provision, courts conduct a two-part analysis. (FilmOn, supra, 7 Cal.5th at p. 149.) “First, we ask what ‘public issue or … issue of public interest’ the speech in question implicates ….” (Ibid.) “Second, we ask what functional relationship exists between the speech and the public conversation about some matter of public interest.” (Id. at pp. 149-150.) In conducting the second part of this analysis, and determining whether there is a sufficient functional relationship between a statement on an issue of public interest and the public conversation or discourse on that issue, “ ‘it is not enough that the statement refer to a subject of widespread public interest ….’ ” (FilmOn, supra, 7 Cal.5th at p. 150; see also Wilson, supra, 7 Cal.5th at pp. 899-900 [holding that the catchall provision embraces speech as well as tangible action].) Instead, “ ‘the statement must in some 9 manner itself contribute to the public debate.’ ” (FilmOn, at p. 150.) Accordingly, in applying the catchall provision courts examine “whether a defendant … participated in, or furthered, the discourse that makes an issue one of public interest.” (Id. at p. 151; see also ibid. [“a statement is made ‘in connection with’ a public issue when it contributes to—that is, ‘participat[es]’ in or furthers—some public conversation on the issue”].) In short, a party contending that its speech or other conduct is protected under the anti-SLAPP statute’s catchall provision “must show not only that its speech referred to an issue of public interest, but also that its speech contributed to public discussion or resolution of the issue.” (Wilson, supra, 7 Cal.5th at p. 900; see also Rand Resources, supra, 6 Cal.5th at p. 626 [the party moving to strike a claim bears the burden of proving that the challenged claim arises out of protected activity].) 2. Application Defendants have not satisfied their burden of showing that Wang’s warnings contributed to public discourse about matters of public interest. a. Content Wang has not shown that, if made public, his warnings would have contributed to public discourse about the matters of public interest identified: national security and regulatory restrictions on foreign entities acquiring domestic technology companies. (See Wilson, supra, 7 Cal.5th at pp. 902-903 [considering content in determining whether statements contributed to public discourse]; FilmOn, supra, 7 Cal.5th at pp. 152-153 [considering the “specific nature of defendant’s speech”].) Although Four Dimensions’ complaint alleges that Wang “made numerous comments about why [WZH] should not do the transaction [with Four Dimensions] and shared with each of them certain Four Dimensions’ Confidential Information,” it did not allege that Wang gave WZH any warnings concerning national security or regulation of foreign acquisitions of domestic semiconductor companies. Instead, Wang asserted in a declaration submitted in support of defendants’ motion to strike that he gave such 10 warnings to WZH and later to Four Dimensions and its shareholders. While such evidence is properly considered under the anti-SLAPP statute (§ 425.16, subd. (b)(2)), the evidence of Wang’s warnings is cursory. Wang’s declaration states only that during a call with WZH representatives “my discussions were strictly limited to publicly available information concerning general CFIUS scrutiny and regulatory compliance matters, without any explicit mention of 4D,” and “[m]y statements regarding WZH’s regulatory risks associated with a potential acquisition of a U.S. semiconductor company were based entirely on my prior deal experience ….” In other words, Wang asserted that he addressed the general subject of government “scrutiny and regulatory compliance matters” and “regulatory risks associated with a potential acquisition of U.S. semiconductor company.” Wang also asserted that in an email to Four Dimensions and its shareholders he referenced “serious legal, financial, and national security concerns surrounding the potential sale to a Chinese buyer.” (Boldface omitted.) However, the declaration does not indicate what exactly Wang said about these issues. This evidence does not show any statement that could have participated in or furthered public discourse concerning national security and regulation of foreign entities acquiring domestic technology companies. There is no reference to any public conversations of such issues and therefore no evidence that Wang participated in such conversations. In addition, there is no description of exactly what Wang said and therefore no evidence that he criticized any rationale for CFIUS scrutiny of the foreign acquisition of domestic technology companies, suggested any changes to that scrutiny, or even complained about the application of such scrutiny to companies such as Four Dimensions. In short, defendants have not presented any evidence that Wang’s warnings included anything that might have furthered public discourse concerning national security and the regulation of foreign acquisition of domestic technology companies. As a consequence, defendants have not satisfied the second part of the analysis under the catchall provision. 11  The Supreme Court has held the catchall provision inapplicable in a similar situation. In Wilson, supra, 7 Cal.5th 871, Cable News Network (CNN) fired a writer and producer after discovering that he wrote a story for the network’s website containing several apparently plagiarized passages. (Id. at p. 882.) In addition to suing CNN for racial discrimination and retaliation, the writer claimed defamation based on statements CNN made to prospective employers suggesting he committed plagiarism. (Ibid.) Although the Supreme Court recognized that the alleged plagiarism implicated an issue of public interest—journalistic ethics—it nonetheless held that the catchall provision did not cover CNN’s statements concerning the writer’s supposed plagiarism because the statements did not contribute to public discourse over plagiarism and journalistic ethics. (Id. at pp. 902-903.) In so doing, the Supreme Court rejected “ ‘what might be called the synecdoche theory of public issue in the anti-SLAPP statute’ [citation]: that the discussion of a purported lapse on the part of one of its writers is equivalent to a conversation about the ethical lapses of all journalists everywhere.” (Wilson, supra, 7 Cal.5th at p. 902; see also Webster’s 3d New Internat. Dict. (1993) p. 2320, col. 1. [defining synecdoche as “a figure of speech by which a part is put for the whole”].) “[F]or anti-SLAPP purposes, as courts have long recognized, ‘[t]he part is not synonymous with the greater whole.’ ” (Wilson, at p. 902, quoting Commonwealth Energy Corp. v. Investor Data Exchange, Inc. (2003) 110 Cal.App.4th 26, 34).) Consequently, CNN’s statements about an isolated instance of plagiarism “did not contribute to public debate about when authors may or may not borrow without attribution,” and the network’s accusations that the writer committed plagiarism did “not contribute in any meaningful way to discussion or resolution of an ongoing matter of public significance.” (Id. at p. 903.) This case is indistinguishable. The mere fact that Wang warned about regulatory obstacles to a foreign entity acquiring a domestic technology company does not contribute to public discourse about national security risks and regulatory restrictions on 12 such acquisitions any more than CNN’s accusations of plagiarism contributed to public discourse over plagiarism and journalistic ethics. Indeed, Wang’s warnings contribute even less than CNN’s statements. In Wilson, CNN identified a concrete example of plagiarism by a journalist. Here, by contrast, it is not clear that Wang stated that attempting to acquire Four Dimensions would subject WZH to CFIUS scrutiny: In his declaration, Wang said only that he discussed “general CFIUS scrutiny and regulatory compliance matters, without any explicit mention of 4D” and “WZH’s regulatory risks associated with a potential acquisition.” (Italics added.) Thus, even more clearly than the statements by CNN in Wilson, Wang’s warnings did not contribute to public discourse. In arguing that the catchall provision applies to Wang’s warnings, defendants make several assertions that are unjustified and unpersuasive. First, they assert that “[i]n a transaction-specific regulatory context, [public] discourse can also be furthered when the participants whose conduct would trigger the public risk are informed of it and can respond to it.” However, defendants provide no authority for this assertion. Nor do they explain how public discourse is furthered simply because private parties who can act upon a risk are informed of it. Defendants assert that such information may be “a direct contribution to the real-word decision-making process.” While that may be true, contributing to a private company’s decision-making process does not necessarily contribute to public discourse. Indeed, Wilson implicitly holds just the opposite. In that case, when CNN informed potential employers of its former writer’s potential alleged plagiarism, it undoubtedly contributed to their decisions whether to hire the writer. Nevertheless, the Supreme Court held that CNN’s statements did not contribute to public discourse over plagiarism and journalistic ethics. (Wilson, supra, 7 Cal.5th at pp. 900-904.) Second, defendants assert that “speech on public issues that is directed to the decisionmakers rather than to the general public is protected by the anti-SLAPP statute.” Here again, defendants fail to offer any persuasive justification for their assertion. In 13 some cases, the catchall provision may protect speech on public issues directed to decisionmakers rather than the general public. However, to the extent that defendants are suggesting that the catchall provision protects speech directed to decisionmakers whenever it implicates a public issue, they are demonstrably wrong. As Wilson showed in ruling that the catchall provision did not cover accusations of potential plagiarism made to potential employers, the catchall provision does not always cover statements made to decision makers. In arguing that the catchall provision covers Wang’s warnings to WZH, defendants also cite several cases. None of these cases help defendants. In one case, Willis v. The Walt Disney Co. (2025) 115 Cal.App.5th 1001 (Willis), the person controlling bookings for the musical group the Village People challenged an alleged decision by Disney not to book the group at its theme parks. (Id. at pp. 1008- 1009.) Willis held that Disney’s conduct—not any speech directed at a decisionmaker— was not protected by the catchall provision because “Disney and the Village People are both squarely in the public eye,” and “Disney’s selection of musical acts to perform at its theme park concerts contributed to the public discussion about a public issue.” (Id. at pp. 1016, 1018.) Defendants do not, and cannot, point to anything in Willis suggesting that the catchall provision covers all speech on a public issue directed at a decisionmaker. Ojjeh v. Brown (2019) 43 Cal.App.5th 1027 (Ojjeh) is similarly inapposite. Like Willis, Ojjeh did not involve speech directed to a decisionmaker. Instead, the case concerned “affirmative conduct” by a filmmaker—“soliciting investments, performing partial work on the uncompleted film, and using the invested funds for purposes unrelated to the film”—in making a documentary. (Ojjeh, at p. 1039.) A third case cited by defendants, Cross v. Cooper (2011) 197 Cal.App.4th 357 (Cross), did involve speech. However, the speech in that case was not directed to a decisionmaker. Instead, in Cross, tenants renting a house told the real estate agent for a prospective buyer of the house that a sex offender lived nearby, and when the sale fell 14 through, the owners sued the tenants for, among other things, tortious interference. (Id. at pp. 365-366.) The tenants filed an anti-SLAPP motion, and the Court of Appeal ruled that their statement to the real estate agent was a protected activity under the catchall provision not only because the presence of a sex offender was an issue of public interest (id. at pp. 378-379), but also because the website concerning sex offenders mandated by Megan’s Law (Pen. Code, § 290.46, subd. (a)(1)) created an ongoing public discussion about the presence of particular offenders in which the tenants participated. (Cross, at p. 383.) There is no similar public discussion here in which Wang participated. Thus, none of the cases cited by defendants support application of the catchall provision. Accordingly, we conclude that defendants have not satisfied their burden of showing that Wang’s warnings contributed to public discourse about national security and the regulation of foreign entities acquiring domestic technology companies. b. Context The conclusion that Wang’s warnings did not contribute to public discourse, and thus the catchall provision does not cover them, is reinforced by the private context in which the warnings were made. As the Supreme Court has observed, “the private context of the alleged statements … makes heavier [a defendant’s] burden of showing that … the alleged statements nevertheless contributed to discussion or resolution of a public issue.” (Wilson, supra, 7 Cal.5th at p. 903.) The warnings at issue were not given by a nonprofit group advocating for social change or a common citizen seeking public support for redressing an injury. They were given by Wang, a private investor. In addition, the warnings to WZH were given privately, to a small audience of “WZH representatives.” Wang’s alleged purpose was to dissuade WZH from acquiring Four Dimensions, a technology company, so that he and his wife could acquire the company instead. And there is no evidence or allegation that Wang’s warnings to WZH ever reached the public sphere. In short, Wang’s warnings to 15 WZH were privately made for private purposes and remained private. Wang’s warnings to WZH and its shareholders were similarly private. In FilmOn, supra, 7 Cal.5th 133, the Supreme Court held that similarly private statements did not contribute to public discourse and therefore fell outside the anti-SLAPP’s catchall provision. The defendant in FilmOn, DoubleVerify, provided online monitoring and tracking services to Internet advertisers. (Id. at pp. 140-141.) It reported to customers that websites operated by the plaintiff, FilmOn, contained adult content and copyright-infringing materials. (Id. at p. 141.) When FilmOn sued for trade libel and other torts, DoubleVerify filed a motion to strike under the anti-SLAPP statute, arguing that its reports were protected under the statute’s catchall provision because they concerned issues of public interest. (Id. at p. 142.) The Supreme Court disagreed. It acknowledged that the presence of adult content and copyright-infringing material on the Internet is an issue of public interest. (Id. at p. 152.) However, the court held that the catchall provision did not cover DoubleVerify’s reports because the reports were issued “privately, to a coterie of paying clients,” who used the information “for their business purposes alone,” and “[t]he information never entered the public sphere.” (Id. at p. 153; see also id. at p. 154 [“DoubleVerify’s report does not qualify for protection under the catchall provision”].) Thus, under FilmOn, the catchall provision does not apply where, as here, statements are privately made for private purposes and remain private. It is true that DoubleVerify’s reports were confidential. (FilmOn, supra, 7 Cal.5th at p. 140.) However, that fact was not crucial to the Supreme Court’s decision in FilmOn. Subsequent cases have held that, even where statements were not confidential, the catchall provision does not cover statements that were privately made for private purposes and remained private. (See Doe v. Ledor (2023) 97 Cal.App.5th 731, 746-747 [the catchall provision did not cover statements made in private emails to college officials that were used in making admission decision and did not become public]; Bishop v. The Bishop’s School (2022) 86 Cal.App.5th 893, 906-907 [the catchall provision did not cover 16 a letter sent to a teacher notifying him of termination for inappropriate behavior with a former student that did not become public]; Murray v. Tran (2020) 55 Cal.App.5th 10, 31-32 [catchall provision did not cover emails sent by a dentist to five individuals involved in the dentist’s business about the quality of another dentist’s work that did not become public].) For the same reason, the warnings from Wang which were made privately to private groups for private purposes and did not become public, did not contribute to any public discourse and therefore are not covered by the catchall provision. Defendants do not dispute that Wang’s warnings were privately made for a private purpose and remained private. Instead, they note that the catchall provision may apply to private communications. That is correct. The Supreme Court has recognized that “private communications may qualify as protected activity in some circumstances.” (Wilson, supra, 7 Cal.5th at p. 903.) However, as noted above, the Supreme Court also has recognized that private communications normally do not contribute to public discourse and are not protected activities under the catchall provision. (Ibid., [“[T]he private context … makes heavier [a defendant’s] burden of showing that … the alleged statements nevertheless contributed to discussion or resolution of a public issue.”].) Defendants try to show that Wang’s warnings contributed to public discourse by arguing that each of the context factors identified by the Supreme Court in FilmOn— "audience, speaker, and purpose” (FilmOn, supra, 7 Cal.5th at p. 152)—support application of the catchall provision. These arguments are unpersuasive. Defendants contend that the “speaker factor” supports application of the catchall provision. However, defendants do not contend that they are part of an organization advocating public change or common citizens trying to gather public support, the sort of speakers that the anti-SLAPP statute was intended to protect. (See, e.g., Geiser, supra, 13 Cal.5th at p. 1253; FilmOn, supra, 7 Cal.5th at p. 143.) Instead, Wang and Li assert that the catchall provision applies because they “were not strangers making idle comments about a subject they knew nothing about.” Because defendants did not make 17 this argument in their opening brief, it has been forfeited. (See, e.g., People v. Tully (2012) 54 Cal.4th 952, 1075 [“It is axiomatic that arguments made for the first time in a reply brief will not be entertained because of the unfairness to the other party.”].) The argument is also meritless. Defendants offer no authority or argument supporting their assertion that a statement contributes to public discourse simply because it is made by someone knowledgeable. Indeed, FilmOn belies this assertion. Although DoubleVerify, the defendant in that case, was in the business of online monitoring and tracking (FilmOn, at p. 140)— and thus “not … making idle comments” in reporting that the website of the plaintiff FilmOn.com contained adult content and copyright infringing material—the Supreme Court held that DoubleVerify’s “for-profit status” weighed against finding that its reports contributed to public discourse. (Id. at p. 153.) Similarly, here, whether or not Wang was knowledgeable about national security and regulatory restrictions on foreign acquisition of domestic semiconductor companies, his status as a private investor weighs against, not for, concluding that his warnings contributed to public discourse and are covered by the catchall provision. Defendants also contend that the “audience factor” supports application of the catchall provision. However, defendants do not contend that Wang’s warnings were made to the media or the general public. Instead, defendants contend that the catchall provision applies to the warnings because they were made to “people who could act on the national-security and regulatory risk.” However, defendants fail to explain why the fact that Wang gave warnings to people capable of acting on them suggests that the statements contributed to public discourse. The reports in FilmOn were given to entities, Internet advertisers, able to act on the information in the reports about the adult and copyright infringing content hosted by the plaintiff FilmOn’s websites. Nonetheless, the Supreme Court held that the audience in FilmOn weighed against application of the catchall provision because they used the information provided “for their business purposes alone.” (FilmOn, supra, 7 Cal.5th at p. 153.) That is also the case here. 18  It is true that the catchall provision, unlike another provision identifying protected activity, does not require that statements be made “in a place open to the public or a public forum” (§ 425.16, subd. (e)(3)), and therefore in some cases the catchall provision may cover speech directed at a targeted audience. However, it does not follow that the catchall provision always or even ordinarily covers speech directed at targeted audiences. The Supreme Court has “never su