Dao Cha v. Lee Heu

Defendant's counsel submits a declaration and evidence that she requested an appointment to meet and confer by telephone or video conference with Plaintiff's counsel, but Plaintiff's counsel failed to respond to her request. Counsel's meet-andconfer declaration fails to establish the requirement to meet and confer in person, by telephone, or by video conference. However, Code of Civil Procedure section 430.41, subdivision (a)(4) provides that this "shall not be grounds to overrule or sustain the demurrer." (See also, Code Civ. Proc., § 435.5, subd. (a)(4) [same for motion to strike].) 5

In light of the parties' unsuccessful attempts at informal resolution, the court has considered the merits of Defendant's demurrer and motion to strike. However, in the future, the parties are advised to meet and confer in person, by telephone, or by video conference, as required by the statute.

Demurrer

In testing a pleading against a demurrer, the alleged facts are deemed true, “however improbable they may be.” (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) A demurrer tests only the legal sufficiency of the pleading--not the truth of the plaintiff's allegations or the accuracy of the plaintiff's description of the defendant's conduct. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 47.)

To be “demurrer-proof,” a complaint must allege sufficient ultimate facts to state a cause of action under a statute or case law. (People ex rel. Dept. of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1484 [adoption of official forms does not relieve plaintiff from alleging essential ultimate facts to state cause of action]; Code Civ. Proc., § 425.10, subd. (a).) Although California courts take a liberal view of inartfully-drawn complaints, “[i]t remains essential...that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of . . . what remedies are being sought." (Signal Hill Aviation Co. v. Stroppe (1979) 96 Cal.App.3d 627, 636.)

At paragraph 10 of the FAC, Plaintiff alleges Defendant posted the following message in a family Facebook group chat:

Plaintiff alleges her husband, Ndzeu Heu, confronted Defendant and asked him to remove the post, but Defendant refused to remove it. Plaintiff alleges, among other damages, prolonged pain and suffering, anxiety, depression, wage loss, and loss of earning capacity.

Statute of Limitations

The statute of limitations for a defamation claim based on libel or slander is one year. (Code Civ. Proc., § 340, subd. (c).) The single-publication rule, codified in Civil Code section 3425.3, provides a statement is generally considered "published" when it is first made available to the public:

No person shall have more than one cause of action for damages for libel or slander or invasion of privacy or any other tort founded upon any single publication or exhibition or utterance, such as any one issue of a newspaper or book or magazine or any one presentation to an audience or any one broadcast over radio or television or any one exhibition of a motion picture. Recovery in any action shall include all damages for any such tort suffered by the plaintiff in all jurisdictions.

(Civ. Code, § 3425.3.) The single-publication rule applies to the Internet. (Traditional Cat Assn., Inc. v. Gilbreath (2004) 118 Cal.App.4th 392, 395 (Traditional Cat); Yeager v. Bowlin (9th Cir. 2012) 693 F.3d 1076, 1081(Yeager).)

In Shively v. Bozanich (2003) 31 Cal.4th 1230, the California Supreme Court explained the single-publication rule as follows:

Under the single-publication rule, with respect to the statute of limitations, publication generally is said to occur on the “first general distribution of the publication to the public.” [Citations.] Accrual at that point is believed to provide adequate protection to potential plaintiffs, especially in view of the qualification that repetition of the defamatory statement in a new edition of a book or newspaper constitutes a new publication of the defamation that may give rise to a new cause of action, with a new accrual date. [Citation.] Under this rule, the cause of action accrues and the period of limitations commences, regardless of when the plaintiff secured a copy or became aware of the publication. [Citations.]

(Id. at pp. 1245–1246, italics original, fn. omitted.)

A claim for defamation accrues when the defendant publishes a defamatory statement by communicating it to a third person who “understands its defamatory meaning as applied to the plaintiff.” (Shively v. Bozanich, supra, 31 Cal. 4th at pp. 1237, 1242.) Under the single-publication rule, publication of a defamatory statement “generally is said to occur on the first general distribution of the publication to the public.” (Id. at p. 1243.) However, “the statute of limitations is reset when a statement is republished.” (Yeager, supra, 693 F.3d at p. 1082; Shively v. Bozanich, supra, 31 Cal. 4th at p. 1242 [“Each publication ordinarily gives rise to a new cause of action for defamation]”.)

Republication occurs “when the original defamer repeats or recirculates his or her original remarks to a new audience.” (Shively v. Bozanich, supra, 31 Cal. 4th at p. 1243.) The one-year statute begins to run regardless of whether a prospective plaintiff is aware that a cause of action has accrued. (Id. at pp. 1245-1246.) Tolling of the statute of 7

limitations occurs only if there is fraudulent concealment, or where a plaintiff could not reasonably have discovered the facts giving rise to the claim. (Id. at p. 1237 [“[t]his socalled discovery rule has been applied to defamation actions in limited circumstances when the defamatory statement is made is secret or is inherently undiscoverable”].)

In Traditional Cat, the court explained the rationale for not applying the discovery rule—which ordinarily would postpone accrual until a plaintiff discovers or has reason to discover the factual basis for a claim—to a defamatory statement subject to the singlepublication rule, including a statement on the Internet, as follows:

[T]he need to protect Web publishers from almost perpetual liability for statements they make available to hundreds of millions of people who have access to the Internet is greater even than the need to protect the publishers of conventional hard copy newspapers, magazines and books. Importantly, the interests in free expression, which the court in Firth v. State [(Ct.App.2002) 98 N.Y.2d 365] found were worthy of protection by application of the single-publication rule to Web pages, are the very same interests which the court in Shively v. Bozanich relied upon in rejecting the notion the single-publication rule should be subject to any discovery exception.

(Traditional Cat, supra, 118 Cal.App.4th at p. 404.)

Without citation to authority, Plaintiff contends Facebook "is an active distribution platform" that should be treated differently. The court in Traditional Cat disagreed:

Given the protection the court gave those interests [in free expression] in Shively v. Bozanich, we have very little doubt that, like the court in Firth v. State, our Supreme Court would find that those interests require application of the single-publication rule to Web page publication.

(Traditional Cat, supra, 118 Cal.App.4th at p. 404.)

The parties agree that republication of a statement resets the statute of limitations. (Shively v. Bozanich, supra, 31 Cal. 4th at 1242; Yeager, supra, 693 F.3d at p. 1082.) Republication occurs “when the original defamer repeats or recirculates his or her original remarks to a new audience.” (Shively v. Bozanich at p. 1243.) But Plaintiff argues the rule for republication is different for Facebook posts because "[w]hen a member posts content to a Facebook group, the platform's algorithm actively serves that content to group members[.]" (Opp., p. 4:25-26.) Plaintiff cites no authority for her contention that republication occurs on Facebook whenever a post is viewed by a new person.

Here, Plaintiff alleges Defendant posted the defamatory message on May 29, 2024. Plaintiff fails to allege facts to show Defendant republished his message by repeating or recirculating it. Plaintiff's cause of action accrued and the statute of limitations began to run on May 29, 2024. Because Defendant posted the message on Facebook more than a year before Plaintiff filed her original complaint on July 7, 2025, the applicable statute of limitations bars her defamation cause of action as alleged. Therefore, the court sustains the demurrer to the FAC based on the statute of limitations. 8

Failure to State a Cause of Action for Defamation

Defendant demurs to the FAC on the second ground that Plaintiff fails to state a cause of action because the alleged Facebook post must be written as a "fact," not merely an opinion. Under Civil Code section 45, libel includes "a false and unprivileged publication . . . which exposes any person to hatred, contempt, ridicule, or obloquy[.]" Civil Code section 45a defines "libel on its face" as "[a] libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact[.]" Civil Code section 46 defines slander as a false and unprivileged oral publication that includes charging any person with a crime.

Plaintiff cites Briganti v. Chow (2019) 42 Cal.App.5th 504, 510, where the court explained the clearest example of "libel per se" might be an accusation of crime. Here, Plaintiff alleges Defendant posted a statement that Plaintiff and her husband "plot to kill me." (FAC, ¶ 10.) In the statement, Defendant accuses Plaintiff and her husband of conspiring to commit a serious crime—murder. Plaintiff sufficiently alleges an actionable defamatory statement of a criminal accusation made on Facebook. (Briganti v. Chow, supra, 42 Cal.App.5th at p. 510 [court found Facebook post stating plaintiff was a convicted criminal sufficient to support actionable defamation claim].) Therefore, the court overrules Defendant's demurrer to the FAC based on the failure to state a cause of action.

Leave to Amend

It is the opposing party’s responsibility to request leave to amend, and to show how the pleading can be amended to cure its defects. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “[T]he plaintiff bears the burden of proving an amendment would cure the defect.” (Tindell v. Murphy (2018) 22 Cal.App.5th 1239, 1251.) To meet this burden, “[t]he plaintiff must identify some legal theory or state facts that can be added by amendment to change the legal effect of his or her pleading.” (Ibid.; accord, Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 520, fn. 16.)

It is an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable possibility the defect can be cured by amendment. Plaintiff has the burden to demonstrate how the FAC might be amended. Here, Plaintiff opposes the demurrer and suggests how she can amend her pleading to cure its alleged defects. Given the court’s liberal policy of amendment and Plaintiff's opposition, the court grants leave to amend.

Motion to Strike

Defendant also moves under Code of Civil Procedure section 436 to strike the request for attorney fees included on page eight of the FAC, at paragraph six of the prayer for relief, on the ground that the requested damages for attorney fees are not recoverable as a matter of law. Code of Civil Procedure section 436 provides:

The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: [¶](a) Strike out any

irrelevant, false, or improper matter inserted in any pleading, [¶] (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.

Defendant contends Plaintiff fails to allege a sufficient statutory basis for attorney fees, so the request for fees is improper and should be stricken. (Code Civ. Proc., § 1021.) The California Supreme Court has explained the general rule for recovery of attorney fees as follows: California follows what is commonly referred to as the American rule, which provides that each party to a lawsuit must ordinarily pay his own attorney fees. [Citations.] The Legislature codified the American rule in 1872 when it enacted Code of Civil Procedure section 1021, which states in pertinent part that "Except as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties....” (Trope v. Katz (1995) 11 Cal.4th 274, 278–279.)

Civil Code section 47.1 provides a statutory exception permitting the recovery of attorney fees in a defamation case for a prevailing defendant accused of making a communication "without malice, regarding an incident of sexual assault, harassment, or discrimination" that is privileged under Civil Code section 47. Another fee-shifting statute, Code of Civil Procedure section 1021.5, provides for an award of attorney fees to a successful party in an action that results "in the enforcement of an important right affecting the public interest." Plaintiff opposes the motion to strike by suggesting that even if the FAC is imperfectly pleaded, she can amend the FAC to include allegations that may support recovery of attorney fees under applicable statutes, such as the private attorney general doctrine of Code of Civil Procedure section 1021.5.

The court agrees that Plaintiff's action could potentially vindicate important rights affecting the public interest, or Plaintiff may be able to plead with greater specificity the grounds for recovery of her attorney fees. Therefore, it would be premature at this juncture to hold that Plaintiffs is not entitled to attorney fees as a matter of law. Therefore, the court denies the motion to strike the prayer for attorney’s fees without prejudice. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: JS on 6/2/2026. (Judge’s initials) (Date)

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