Motion to Set Aside Attorney’s Fees; Motion to Strike
Case No. 24CV441593 Motion to Set Aside (Line #1) & Motion to Strike (Line #2)
MOTION TO SET ASIDE ATTORNEY’S FEES (LINE #1) I. BACKGROUND Before the court is Defendant Zinah Liu’s (“Liu”) Motion to Set Aside and Vacate the award for attorney’s fees. This motion arises from plaintiff’s motion for attorney’s fees that came for hearing on April 17, 2025 in front of the Honorable Shella Deen. After the hearing on the motion, Judge Deen awarded attorney’s fees for the plaintiff in the amount of $10,400.00.
On February 3, 2026, the Court heard the Defendant’s motion for reconsideration to the March 12, 2025 order grating plaintiff’ motion to strike the third cause of action in the first amended complaint and motion for attorney’s fees. The Court denied both requests and noted that the defendant failed to comply with Code of Civil Procedure section 1008(a) and also failed to demonstrate any new or different facts, circumstances, or law warranting reconsideration.
Plaintiffs oppose the motion and filed opposition briefs on March 16, 2026 and provided subsequent supplemental briefing in support of its opposition to defendant’s motion to set aside attorney fees. The plaintiff asserts that the Court already heard and denied Defendant’s motion for reconsideration of the same order and seeks to have this matter denied. Defendant asserts that the defendant seeks to relitigate the matter under section 473, which is improper as constitutes a collateral attack on a final order that has already been litigated and there is no presentation of new facts. (Plaintiff’s opposition, p. 2).
Plaintiff contends that the party may not repeatedly challenge the same ruling by filing successive motions and that the defendant fails to articulate any new or different facts, circumstances, or law meriting reconsideration and vacating the attorney’s fees award and that Defendant appeared at the April 17, 2025 hearing. (Id., at p. 3). On April 28, 2025, the defendant filed a motion for reconsideration. Plaintiff asserts that Defendant raises the same arguments that she did not receive notice of the fee motion, which was already considered in the February 3, 2026 hearing.
The Court has carefully reviewed the moving papers, including Defendant’s Motion to Set Aside (totaling 7 pages); Declaration of Zihan Liu in support of the motion to vacate/set aside (totaling 13 pages); Plaintiffs opposition (totaling 5 pages); Declaration of Andy Yang in opposition to the motion to set aside (totaling 11 pages); opposition of Zihan Liu to plaintiff’s motion for sanctions and attorney’s fees (totaling 4 pages); Plaintiff’s reply in support of attorney’s fees and sanctions and supplemental reply Declaration of Andy Yang with attached Exhibits A-B (totaling 13 pages); proof of services; and the pleadings.
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II. LEGAL STANDARD Pursuant to Code of Civil Procedure A. CODE OF CIVIL PROCEDURE SECTION 473(B) Code of Civil Procedure section § 473(b) provides for both discretionary and mandatory relief. In terms of discretionary relief section 473(b), in pertinent part, reads as follows:
The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. . . 4
The mandatory provision of section 473(b) reads, in pertinent part, as follows:
Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.
The general underlying purpose is to promote the determination of actions on their merits. (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830). Under this statute, an application for relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought and must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or neglect of the moving party or its attorney. (Code of Civ. Proc., § 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143).
B. CODE OF CIVIL PROCEDURE 473.5 Code of Civil Procedure section 473.5(a) provides: “When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.”
C. CODE OF CIVIL PROCEDURE 473(D) Under Code of Civil Procedure section 473(d), “[t]he court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”
III. ANALYSIS Here, Defendant seeks to set aside an order granting attorney’s fees in the amount of $10,400.00 that the Honorable Shella Deen awarded after hearing on April 17, 2025. The order for attorney’s fees was authorized over 13 months to this hearing. The defendant filed a motion for reconsideration on April 28, 2025, Defendant Liu sought to reconsider the $10,400.00 in attorney’s fees awarded, admitting she failed to file opposition papers, but argued that she was not properly served with the motion papers.
Plaintiff has rebutted this argument and there has been no evidence presented to show otherwise. Defendant Liu also argued that the attorney’s fees award was excessive, unreasonable, and unsupported. The motion for reconsideration came for hearing on February 3, 2026 and was denied on the grounds that the arguments presented did not constitute new or different facts or circumstances to support reconsideration. Defendant’s motion to set aside consists of the same arguments and does not present new facts at issue.
Relitigating this issue on essentially the same facts would not be in the interest of justice or judicial economy. Even if the Court considers the substance of the defendant’s present motion, the Court finds that there has been no showing that Code of Civil Procedure 473(b), 473.,5, or 473(d) is applicable.
IV. CONCLUSION Based on the foregoing, Court DENIES the motion to vacate and set aside the April 17, 2025 order for attorney’s fees. The Court will prepare the formal Order. //
MOTION TO STRIKE (LINE #2) I. BACKGROUND Before the court is defendant/ cross-complainant Zihan Liu’s special motion to strike plaintiffs’ complaint pursuant to Code of Civil Procedure §425.16 (anti-SLAPP). Pursuant to California Rule of Court 3.1308, the court issues its tentative ruling as follows.
A. COMPLAINT Plaintiff Fuheng Inc. (“Fuheng”) provides quality Chinese medicine herbal products to its large customer base spanning across North America and Australia. (Complaint, ¶5). Plaintiff Fuheng has sold over a hundred thousand bottles of Coughing Tea, an herbal composition to relieve symptoms of cough. (Id.) Plaintiff Dalong Zhang (“Zhang”) formulated the composition of Coughing Tea and other popular Chinese medicine tea products, three of which are patent pending. (Id.). Plaintiff Fuheng has built a large online customer base. (Id.). Plaintiff Fuheng’s products are offered across multiple e-commerce platforms including Fuhengherbs.com. (Id.).
In addition to offering Fuheng products online, plaintiff Zhang, a traditional Chinese medicine (“TCM”) practitioner, conducts in-store and online diagnostics. (Complaint, ¶6). If the diagnostics show the customer is suffering from treatable conditions, plaintiff Zhang offers customers made-to-order tea, specifically designed to alleviate the symptoms. (Id.).
Defendant Zihan Liu (“Liu”) first met plaintiffs on February 27, 2024, at approximately 4:30pm, to consult and receive a TCM diagnosis. (Complaint, ¶7). After the diagnosis, defendant Liu purchased 45 bottles of Chinese medicine tea for a total of $1,350 consisting of three distinct compositions of Chinese herbal medicine in the form of a tea. (Complaint, ¶8). Each composition is comprised of up to 20 Chinese herbal ingredients, made-to-order, and costly to make. (Id.). Defendant Liu paid for the products, signed both the order form and refund guarantee, and agreed to pick up the products on the next business day. (Id.). The refund guarantee promises that the purchased product can be returned if the product did not work as intended. (Id.).
After defendant Liu left the store, plaintiffs commenced the production process. (Complaint, ¶9). At approximately 7:00 p.m., defendant Liu called to cancel the order. (Id.). Plaintiff reminded defendant Liu that the refund guarantee is available only if the products were consumed and did not work as intended. (Id.). The custom made products were stored in plaintiff’s refrigerator the next business day awaiting pick up by defendant Liu. (Complaint, ¶10). The product expired after three months at which time plaintiffs discarded it. (Id.).
On at least two occasions in February and March 2024, defendant Liu came into plaintiff’s store threatening to continue posting negative reviews unless provided a refund. (Complaint, ¶11). During these two visits, defendant Liu took unauthorized pictures and drove away plaintiffs’ customers with her verbally abusive comments and acts of harassment. (Complaint, ¶12).
On or about March 28, 2024, defendant Liu published an article on a Chinese social media platform, Xiaohongshu.com, viewed by thousands of mostly Chinese natives in and around the Bay Area where plaintiffs operate. (Complaint, ¶13). The article by defendant Liu states, in part, “Yesterday, as a witness, I attended the trial of other friends who sued a scammer. I thought that this person was so good at deceiving people, so he must have some knowledge. As a result, the trial found that this person was actually mentally retarded . . . I really couldn’t hold it in the back. What kind of mental retardation is this? ... So everyone see! He is at this level! Just sue him!” (Id.).
From about March 2024 to June 2024, defendant Liu published 31 comments on Xiaohongshu.com. (Complaint, ¶14). On March 4, 2024, defendant Liu published a comment which stated, “this person has serious delusion ... In psychology, this is typical of npd symptom, do not be silent everyone, join me to sue him, the success rate will be high, get money back and let his store shut down.” (Id.). On March 5, 2024, defendant Liu published a comment which stated, “I can’t believe he is scamming people in public, the store is not small, returns are good too, I really can’t believe this fraud can be this successful.” (Complaint, ¶15).
On March 5, 2024, defendant Liu published a comment which stated, “Everyone who wants to sue him can contact me, right now four people are ready to sue, damages involved exceed 12k, everyone can begin criminal litigation . . . He doesn’t even know English.” (Complaint, ¶16).
On June 8, 2024, defendant Liu or someone under her direction and control used the pseudonym “Lisa K” to publish the following on BBB.org concerning plaintiff Fuheng: “paid for $1350 for the herb drinks and then saw lots of lawsuits this owner was involved – and requested for refund after 20 minutes of the purchase.” (Complaint, ¶17).
On June 11, 2024, defendant Liu or someone under her direction and control used the pseudonym “Lisa” to publish the following on Google Map Reviews concerning plaintiff Fuheng: “This is a total scam store and scam doctor – search it on Google and search the doctor’s name from San Jose Superior Court, see how many scam lawsuits he’s involved in.” (Complaint, ¶18).
On June 20, 2024, plaintiffs commenced this action by filing a complaint against defendant Liu which asserts the following causes of action: (1) Libel (2) Trade Libel (3) Invasion of Privacy – False Light (4) Intentional Infliction of Emotional Distress (5) Breach of Contract (6) Intentional Interference with Contractual Relationships (7) Intentional Interference with Prospective Economic Advantage (8) Injunctive Relief
On July 29, 2024, defendant Liu filed an answer to plaintiffs’ complaint and also filed a cross-complaint against plaintiffs Fuheng and Zhang.
On August 14, 2024, cross-defendants Fuheng and Zhang filed a demurrer to cross-complainant Liu’s crosscomplaint.
On September 19, 2024, defendant Liu filed a motion to strike plaintiffs’ complaint pursuant to, among other bases, Code of Civil Procedure section 425.16 (anti-SLAPP). On January 27, 2025, the Honorable Shella Deen issued a detailed 14-page order in which she granted defendant Liu’s motion to strike the sixth cause of action, but otherwise denied defendant Liu’s motion to strike.
On September 30, 2024, cross-complainant Liu filed a first amended cross-complaint (“FAXC”) against crossdefendants Fuheng and Zhang.
B. CROSS COMPLAINT Cross-complainant Liu’s FAXC alleges that on February 27, 2024, Liu paid $1,350 to Zhang and, on the same day, also paid a $24 consultation fee to Zhang. (FAXC, ¶3). Fuheng and Zhang manipulated Liu into purchasing $2,700
worth of herbal medicine by asserting during the consultation that Liu had severe diseases while failing to disclose any information about the ingredients used in the herbal medicines. (FAXC, ¶¶4 and 6). Fuheng and Zhang represented their herbal medicines were FDA-approved. (FAXC, ¶5). Cross-defendants’ website featured the misleading claim of being an FDA-approved factory. (Id.). This deliberate misrepresentation was intended to defraud Liu into purchasing cross-defendants Fuheng and Zhang’s herbal medicines. (Id.). During the consultation, Zhang asked Liu a series of inappropriate and sexually suggestive questions. (FAXC, ¶6).
Liu underwent a full-body examination at Kaiser Permanente and no heart, lung, kidney, liver, or stomach diseases were identified. (FAXC, ¶7). The diagnosis provided by cross-defendants Fuheng/ Zhang during the consultation on February 27, 2024 was false. (Id.).
Liu requested a full refund 20 minutes after the consultation and prior to cross-defendants Fuheng/ Zhang placing any orders, but Liu never received a refund. (FAXC, ¶8). Liu never received the herbal medicines prescribed by cross-defendants Fuheng/ Zhang. (FAXC, ¶9).
In March 2024, cross-defendants Fuheng/ Zhang contacted Liu and stated they would only issue a refund if Liu signed a contract agreeing not to pursue legal action or leave any public reviews. (FAXC, ¶10).
On March 4, 2024, Liu filed a small claims complaint (“Small Claims Action”) against Fuheng/ Zhang. (FAXC, ¶12). On March 8, 2024, Liu’s mother served cross-defendants with Liu’s small claims complaint. (FAXC, ¶11). On June 14, 2024, Liu received a favorable notice of entry of judgment in the Small Claims Action which stated that Zhang, doing business as Fuheng, is ordered to pay Liu $1,375 plus $52.05 in costs. (FAXC, ¶12).
Liu experienced severe mental distress beginning with the false and fraudulent diagnosis, financial losses, and sexual harassment. (FAXC, ¶14.) Liu was diagnosed by a psychiatrist with severe depression, suicidal tendencies, and posttraumatic stress disorder, all directly caused by cross-defendants Fuheng/ Zhang. (Id.). Liu’s FAXC asserts the following causes of action: (1) Intentional Infliction of Emotional Distress (2) Fraud (3) Malicious Prosecution (4) False Advertisement (5) Medical Malpractice (6) Injunctive Relief
On October 30, 2024, cross-defendants Fuheng and Zhang filed (1) a special motion to strike the third cause of action [malicious prosecution] of cross-complainant Liu’s FAXC; and (2) a demurrer to cross-complainant Liu’s FAXC.
On October 31, 2024, cross-defendants Fuheng and Zhang filed a motion for attorney’s fees incurred in connection with their special motion to strike the third cause of action [malicious prosecution] of cross-complainant Liu’s FAXC.
On March 12, 2025, the court issued an order granting cross-defendants Fuheng and Zhang’s special motion to strike the third cause of action of cross-complainant Liu’s FAXC. The court sustained, in part, and overruled, in part, crossdefendants Fuheng and Zhang’s demurrer to cross-complainant Liu’s FAXC.
On March 21, 2025, cross-complainant Liu filed a second amended cross-complaint (“SAXC”) which continues to assert the same causes of action identified in her FAXC.
On April 17, 2025 (order after hearing filed May 2, 2025), the court granted cross-defendants Fuheng and Zhang’s motion for attorney’s fees related to their special motion to strike in the amount of $10,400.
On April 21, 2025, cross-defendants Fuheng and Zhang filed a demurrer to cross-complainant Liu’s SAXC.
On April 28, 2025, cross-complainant Liu filed a Notice of Appeal which appears to encompass the court’s March 12, 2025 order granting cross-defendants Fuheng and Zhang’s special motion to strike the third cause of action of cross-complainant Liu’s FAXC and the court’s April 17, 2025 ruling granting cross-defendants Fuheng and Zhang’s motion for attorney’s fees.
Also on April 28, 2025, cross-complainant Liu filed a motion for reconsideration of the court’s March 12, 2025 order granting cross-defendants Fuheng and Zhang’s special motion to strike the third cause of action of cross-complainant Liu’s FAXC and the court’s April 17, 2025 ruling granting cross-defendants Fuheng and Zhang’s motion for attorney’s fees.
On June 16, 2025, cross-complainant Liu filed an Abandonment of Appeal.
On July 23, 2025, the court issued an order sustaining, without leave to amend, cross-defendants Fuheng and Zhang’s demurrer to all causes of action in cross-complainant Liu’s SAXC except for fraud, “the only surviving cause of action.”
On September 2, 2025 [prior to a hearing on cross-complainant Liu’s motion for reconsideration], defendant/ crosscomplainant Liu filed the two motions now before the court: (1) a motion to set aside/ vacate attorney fee order [of April 17, 2025 in the amount of $10,400]; and (2) a special motion to strike plaintiffs’ complaint pursuant to Code of Civil Procedure §425.16 (anti-SLAPP).
On February 3, 2026 (order after hearing filed March 9, 2026), the court denied cross-complainant Liu’s motion for reconsideration.
II. LEGAL STANDARD Pursuant to Code of Civil Procedure 425.16, the Court may strike causes of action arising from an act in furtherance of the defendant's right of free speech or petition, unless the plaintiff establishes that there is a probability that the plaintiff will prevail on the claim. “The anti-SLAPP procedures are designed to shield a defendant’s constitutionally protected conduct from the undue burden of frivolous litigation.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 393). “A SLAPP suit is a meritless lawsuit ‘filed primarily to chill the defendant's exercise of First Amendment rights.’” (Healthsmart Pacific, Inc. v.
Kabateck (2016) 7 Cal.App.5th 416, 426). To protect the valid exercise of free speech, the Legislature enacted the anti-SLAPP statute. (Id.). “The statute authorizes a special motion to strike a cause of action arising from the defendant's exercise of his or her constitutional right of petition or free speech, unless the plaintiff establishes a probability of prevailing on the claim.” (Ibid.)
However, “[t]he anti-SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.” (Baral, supra, 1 Cal.5th at 384).
“Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.” (Baral, supra, 1 Cal.5th at 384, citation omitted). The California Supreme Court has “described this second step as a ‘summary-judgment-like
procedure.’ The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. ‘[C]claims with the requisite minimal merit may proceed.’” (Id. at 384-385 [citations omitted]; see also, Yang v.
Tenent (2020) 48 Cal.App.5th 939, 945-46 (“The procedure made available to defendants by the anti-SLAPP statute has a distinctive two-part structure. [Citations.] A court may strike a cause of action only if the cause of action (1) arises an act in furtherance of the right of petition or free speech ‘in connection with a public issue,’ and (2) the plaintiff has not established ‘a probability’ of prevailing on the claim. [Citation]. [Citation].”)). In making the determination in the second step, trial court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Equilon Enterprises v.
Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67).
Section 425.16(f) provides that moving party must move to strike under this section within 60 days of service of the complaint. (Code of Civ. Proc. §425.16(f)).
III. ANALYSIS As highlighted in the procedural history above, defendant Liu previously filed a special (anti-SLAPP) motion to strike plaintiffs’ complaint on September 19, 2024, which the Honorable Shella Deen ruled on in an order dated January 27, 2025.
The court notes that the present special (anti-SLAPP) motion to strike is filed by defendant Liu’s counsel who formally substituted into this matter on September 12, 2025. In the supporting memorandum of points and authorities, defendant Liu acknowledges plaintiffs filed the subject complaint on June 18, 2024, serving it upon defendant Liu on June 28, 2024 and the instant special motion to strike is brought well beyond the 60-day window generally authorized by Code of Civil Procedure section 425.16, subdivision (f).1
Timeliness of the motion aside, the court can only deduce that defendant Liu did not inform her new counsel that she had previously filed a special (anti-SLAPP) motion to strike plaintiffs’ complaint and/ or that defendant Liu’s new counsel did not adequately review the docket in this matter to recognize defendant Liu already filed and the court already ruled upon such a motion. In either case, the instant motion to strike is procedurally improper.
Defendant Liu did not timely seek reconsideration of the court’s ruling on her earlier special (anti-SLAPP) motion to strike plaintiffs’ complaint. Plaintiffs have not filed an amended complaint to add any additional causes of action. “An anti-SLAPP motion is not a vehicle for a defendant to obtain a dismissal of claims in the middle of litigation; it is a procedural device to prevent costly, unmeritorious litigation at the initiation of the lawsuit.” (San Diegans for Open Government v. Har Construction, Inc. (2015) 240 Cal.App.4th 611, 625–626 [192 Cal.
Rptr. 3d 559]). To minimize this problem, section 425.16, subdivision (f), should be interpreted to permit an anti-SLAPP motion against an amended complaint if it could not have been brought earlier, but to prohibit belated motions that could have been brought earlier (subject to the trial court's discretion to permit a late motion). (Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, 645 (emphasis added)—anti-SLAPP motion timely only as to two new causes of action pleaded for the first time in the third amended complaint).
Defendant Liu has cited no legal authority, factual basis, or good cause for this court to entertain a second special (anti-SLAPP) motion to strike directed at plaintiffs’ complaint.
1 Code of Civil Procedure section 425.16, subdivision (f), states, in relevant part, “The special motion may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper.” 10
IV. CONCLUSION Accordingly, defendant Liu’s special motion to strike plaintiffs’ complaint pursuant to Code of Civil Procedure section 425.16 (anti-SLAPP) is DENIED.
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