Judge: Peter A. Hernandez, Case: 23PSCV00650, Date: 2023-08-10 Tentative Ruling

Case Number: 23PSCV00650    Hearing Date: August 10, 2023    Dept: K

Defendant Roger O. Vega’s motion for attorney’s fees is DENIED.

Legal Standard

Code of Civil Procedure section 425.16 (c)(1) states:

Except as provided in paragraph (2), in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover that defendant’s attorney’s fees and costs. 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.

Discussion

Defendant argues that he is entitled to attorney’s fees pursuant to CCP § 425.16(1)(c) and Law Offices of Andrew L. Ellis v. Yang (2009) 178 Cal.App 4th 869.  In Yang, the Court of Appeal held that the trial court lacked jurisdiction to rule on merits of anti-SLAPP motion after voluntary dismissal of action.  (Yang, supra, 178 Cal.App 4th 869.)  There, the plaintiff dismissed the case prior to the hearing on the defendants’ anti-SLAPP motion.  (Id. at p. 872–873.)  Nonetheless, the trial court ruled on the anti-SLAPP motion and held that the defendants were entitled to attorney’s fees.  (Id. at p. 874.)  The Court disagreed with the trial court’s finding, stating, “at the time plaintiff dismissed its complaint without prejudice, the trial court had not made a tentative or definitive ruling on defendants' anti-SLAPP motion and it was not inevitable that the motion would be granted.”  (Id. at p. 878.)  “Even though plaintiff had not filed an opposition to defendants' anti-SLAPP motion, defendants' success was not guaranteed.”  (Id.)  Thus, the Court found that the defendants were not entitled to attorney fees and costs based on their anti-SLAPP motion.

The facts in this case are nearly the same as in Yang.  In both Yang and this case, Plaintiff dismissed the action prior to the hearing on Defendant’s anti-SLAPP motion.  Thus, the court no longer maintains jurisdiction to rule on the merits of that motion, and Defendant fails to provide any other basis for his award of attorney’s fees.  The court notes that unlike in Yang, where the plaintiff failed to file an opposition to the defendants’ anti-SLAPP motion, here, Plaintiff did file one.  This further supports that there was no guarantee of success of Defendant’s motion.

Thus, the motion for attorney’s fees is DENIED.