Hai Huynh v. Bien Doan

Doan previously filed both a special motion to strike the complaint (Code Civ. Proc., § 425.16) and a demurrer to the complaint. Both were heard by the court (Judge Chung) in September 2025. The court denied the anti-SLAPP motion. The court found that the complaint arose from protected activity under Code of Civil Procedure section 425.16, subdivision (e)(4). On the second prong of the analysis, the court rejected Doan’s arguments that the alleged statements were not sufficiently described and that the alleged statements would have been privileged under Civil Code section 47, subdivision (a). (See Sept. 19, 2025 order at pp. 9:11-10:18.)

The court also found that “Huynh has submitted evidence in the form of declarations and testimony from the prior civil harassment proceeding that is sufficient to make a ‘prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.’ This includes the sworn testimony of Duong that at a funeral service in either February 2024 or ‘towards the end of 2023 or the fall season’ Doan ‘had told me that Hai Huynh was a bad guy and that he was a convicted felon and that I should be careful.’ (Complaint, Exhibit A, p. 129:10-15; see also Declaration of Betty Duong, ¶¶ 9-12.)” (Id. at pp. 8:24-9:5, internal citation omitted.)

The court expressly found that Huynh had shown sufficient prima facie evidence of malice: “Huynh has submitted evidence that even prior to making the allegedly defamatory statement to Duong, Doan had told others that Huynh was a ‘convicted felon,’ Doan had been told this was not true, he had been asked to stop making this statement, but he nevertheless insisted on repeating it to Duong. (Declaration of Thi Mong Hoang, ¶¶ 5-8; Declaration of Ha Phong Duong, ¶ 7; Declaration of Hai Huynh, ¶¶ 11-12, 16-18.) In addition, Huynh points to evidence in the public record that would have made clear—upon even a cursory examination— that Huynh was never convicted of a felony. (Huynh Declaration, ¶¶ 25-26.) This is sufficient to make a prima facie showing of malice.” (Sept. 19, 2025 order at pp. 10:20-11:6.)

The court sustained Doan’s demurrer to the defamation cause of action with leave to amend because “Hyunh has pointed to sufficient evidence to make a prima facie showing of malice in response to the anti-SLAPP motion. But none of this evidence is in the pleading itself.” (Id. at p. 15:14-16.) The court granted leave to amend based on the decision in “Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858 (Nguyen-Lam), which similarly involved a situation in which a plaintiff failed to plead malice adequately in her complaint but had sufficient evidence to prevail on the second prong of the anti-SLAPP analysis. In that case, the trial court granted leave to amend, and the Court of Appeal found no error in that ruling. Those are essentially the facts of the present case.” (Id. at p. 16:19-23.) The court takes judicial notice of Judge Chung’s order on its own motion. (Evid. Code, § 452, subd. (d).)

Doan did not file a motion for reconsideration of the September 2025 order; nor did he appeal from that order. The court’s finding that Hyunh has sufficiently shown a probability of prevailing on his defamation claim remains in effect and the September 2025 order is presumed correct. The decision to grant Huynh leave to amend the allegations in the complaint and file a FAC has no bearing on that finding.

The operative first amended complaint was filed in October 2025. The FAC alleges a single cause of action for defamation per se. The FAC, at paragraphs 50 through 62, adequately alleges malice by Doan by alleging the facts that were previously stated only in the declarations submitted in opposition to the anti-SLAPP motion. A copy of the transcript from the prior civil harassment case, case No. 24CH012393, is once again attached as exhibit A. Attached as exhibit B are copies of a text message exchange between Huynh and Doan.

Now before the court is a renewed anti-SLAPP motion by Doan, which Hyunh opposes.

DISCUSSION

As an initial matter, there is no authority permitting a moving party to incorporate by reference arguments made in previously filed motions. The court has not considered any such incorporated documents or arguments in deciding Doan’s motion. (See Doan memorandum at p. 2, fn. 1, and p. 5, fn. 2.)

Request for Judicial Notice

Hyunh filed a request for judicial notice with his opposition. “Judicial notice may not be taken of any matter unless authorized or required by law.” (Evidence Code §450.) A precondition to judicial notice in either its permissive or mandatory form is that the matter to be noticed be relevant to the material issue before the Court. (Silverado Modjeska Recreation and Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 307.) Hyunh’s request for judicial notice of “[a]ll pleadings and documents filed in this case,” and of a February 2026 court order in a different lawsuit involving Doan is denied as irrelevant to the material issue before the court on this motion. To the extent the requests for judicial notice made in the body of Huynh’s opposition brief could be considered separate requests, they are also denied. (Cal. Rules of Court, rule 3.1113(l).)

The Renewed Anti-SLAPP Motion Must Be Denied

Section 1008 of the Code of Civil Procedure is the exclusive means for a party to call upon a court to revisit interim rulings. (Code Civ. Proc., § 1008, subd. (e) (unspecified statutory references are to this Code); Standard Microsystems Corp. v. Winbond Electronics Corp. (2009) 179 Cal.App.4th 868, 885.) Section 1008 describes two types of motion: (1) a motion for reconsideration, and (2) a motion for renewal.

Motions for reconsideration are governed by section 1008, subdivision (a), which requires that any such motion be (1) filed “within 10 days after service upon the party of written notice of entry of the order” of which reconsideration is sought, (2) supported by new or different facts, circumstances or law, and (3) accompanied by an affidavit detailing the circumstances of the first motion and the respects in which the new motion differs from the first. (§ 1008, subd. (a).) 7

Motions for renewal are governed by section 1008, subdivision (b), which echoes the requirements for motions for reconsideration with the exception that motions for renewal are not subject to the 10-day time limit. The provision provides that “[a] party who originally made an application for an order which was refused in whole or part . . . may make a subsequent application for the same order upon new or different facts, circumstances, or law.” (§ 1008, subd. (b).) Section 1008, subdivision (b), thus applies when the moving party seeks the same order that it sought previously based on purportedly new or different facts, circumstances, or law.

An “order” is defined as a “direction of a court or judge, made or entered in writing, and not included in a judgment.” (§ 1003.) Thus, a party seeks the same order as it did in a previous motion when it requests the same relief in both motions. (California Correctional Peace Officers Ass’n v. Virga (2010) 181 Cal.App.4th 30, 43 [“We conclude that appellants’ second motion for attorney fees was a motion for ‘the same order’ (§ 1008, subd. (b)) as they sought in their first motion, because they sought identical relief in both motions.”]; Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187, 193 (Sole) [“‘The nature of a motion is determined by the nature of the relief sought, not by the label attached to it.’”].)

For any motion under section 1008, the moving party must present “a satisfactory explanation for failing to provide the evidence earlier, which can only be described as a strict requirement of diligence.” (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.) According to the plain language of the statute, a court acts in excess of its jurisdiction if it grants a motion to reconsider or renew that is not based upon new or different facts, circumstances, or law. (§ 1008, subd. (e) [“This section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and . . . [n]o application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.”]; Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.)

As the California Supreme Court has stated:

We cannot prevent a party from communicating the view to a court that it should reconsider a prior ruling (though any such communication should never be ex parte). . . . But a party may not file a written motion to reconsider that has procedural significance if it does not satisfy the requirements of section 437c, subdivision (f)(2), or 1008. The court need not rule on any suggestion that it should reconsider a previous ruling and, without more, another party would not be expected to respond to such a suggestion. . . . Unless the requirements of section 437c, subdivision (f)(2), or 1008 are satisfied, any action to reconsider a prior interim order must formally begin with the court on its own motion.

(Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108, internal citations omitted.)

Doan’s second anti-SLAPP motion is brought “on the grounds that Plaintiff’s Complaint is based on protected speech and fails to allege facts demonstrating that Plaintiff has a probability of prevailing on his claim for defamation.” (Notice of Motion at p. 1:9-10.) The current motion seeks the same relief as the prior motion. It is not based on new or different facts, circumstances, or law. It repeats arguments rejected by Judge Chung. And it does not 8

fully acknowledge Judge Chung’s ruling on the second prong of the anti-SLAPP analysis. The instant motion does not meet the requirements for a motion under section 1008.

The supporting memorandum effectively admits that Doan is asking the court to revisit Judge Chung’s ruling by arguing that “[a] renewed motion is permissible where amended pleadings alter the analysis.” (Memorandum at pp. 4:26-5:2, citing Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637 (Newport Harbor II).) But the analysis here has not been altered by the FAC. There are no new or different facts, circumstances, or law here related to the anti-SLAPP motion. The sufficiency of the defamation allegations in both the original complaint and the FAC are irrelevant to the court’s finding that Hyunh had submitted evidence showing a probability of prevailing on his defamation cause of action and had sufficiently made a prima facie showing of malice.

Doan’s renewed anti-SLAPP motion cannot and does not function as a demurrer to the FAC’s defamation cause of action. Because the renewed motion is denied, Doan’s request for attorney fees is likewise denied.

The facts of this case are distinguishable from those in Newport Harbor II, where a third amended complaint added two new causes of action for the first time. Based on that procedural posture, the Supreme Court determined those new causes of action could be the target of an anti-SLAPP motion despite the significant amount of litigation that had already taken place in the lawsuit. (Newport Harbor II, supra, 4 Cal.5th at p. 646.) “Newport Harbor II struck a balance by allowing late motions directed only at new causes of action to ‘maximize[] the possibility the anti-SLAPP statute will fulfill its purpose while reducing the potential for abuse.’” (Starview Property, LLC v. Lee (2019) 41 Cal.App.5th 203, 212.)

Hyunh argues that the current renewed motion is frivolous and that he should be awarded attorney fees. (See Opposition at pp. 11:4-12:13.) “If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.” (§ 425.16, subd. (c)(1).) A prevailing plaintiff must comply with the requirements of section 128.5 to obtain an order requiring the moving party to pay attorney fees. “Before awarding attorney fees to a plaintiff who has successfully opposed an anti- SLAPP motion, the court must find that the motion to strike is ‘frivolous or is solely intended to cause unnecessary delay,’ and the court must comply with the procedural provisions of section 128.5. (§ 425.16, subd. (c).)

Section 128.5 requires notice in the moving or responding papers, an opportunity to be heard, and a written order reciting in detail the conduct or circumstances justifying the order.” (California Back Specialists Medical Group v. Rand (2008) 160 Cal.App.4th 1032, 1037-1038 [holding that notice was sufficient where plaintiff raised the issue of attorney fees in opposition to the anti-SLAPP motion and provided amount of attorney fees sought].)

Hyunh has not provided Doan with notice of the amount of attorneys’ fees requested or evidence of such fees. The court will not award attorney fees at this time.

CONCLUSION

Huynh’s request for judicial notice is denied.

Doan’s renewed anti-SLAPP motion is denied. 9

Huynh’s request for attorney fees is denied. This ruling is without prejudice to Huynh’s ability to file a noticed motion for attorney fees. (§§ 425.16, subd. (c); 128.5.)

The court will prepare the order.

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