Court cannot deny fees until a motion is made

Tim Kowal January 28, 2025

At the hearing on the successful defendant’s anti-SLAPP motion—but before she moved for fees—the trial court granted the motion, but denied fees. This was surprising for two reasons. One, the prevailing anti-SLAPP defendant has a right to fees. Two, and more interesting, the defendant hadn’t even made her motion yet.

Reversing, Ruano v. Goldberg (D2d4 Jan. 21, 2025, No. B326833) 2025 WL 258271 (nonpub. opn.) held the prevailing party had a right to a hearing. True, pro se litigants aren’t normally entitled to attorneys’ fees. But that’s not a categorical rule, and the successful anti-SLAPP defendant was entitled to argue some recoverable fees, even if as pro se her recovery may be limited. By ruling before even giving her a hearing, the trial court erred.

In fact, in signing the settled statement as the oral record of the proceedings—pretty savvy move for any appellant, especially pro se—the trial court acknowledge the error in prematurely denying fees. But as the appeal had already been filed, the trial court was deprived of jurisdiction to fix the error.

The outcome is correct but a little surprising. What is surprising is that the Court of Appeal said that the litigant “was entitled to a hearing on her motion for attorney fees.” Technically, I’m not sure that’s true. There is no general right to a “hearing,” and the right to brief a law-and-motion matter generally is enough. (See Lewis v. Superior Court (1999) 19 Cal.4th 1232.)

So the court didn’t really mean that the defendant had a right to hearing. What the court really meant was that the trial court cannot deny a motion that hasn’t been made.

(Thanks to Cal. Attorneys’ Fees blog for the tip to this case.)

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.

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Court cannot deny fees until a motion is made

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"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind." — Sir Thomas More in Robert Bolt's A Man for All Seasons

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor." — Rubin v. Green (1993) 4 Cal.4th 1187

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly. — Leviticus

"A judge is a law student who grades his own papers." — H.L. Mencken

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws." — Plato (427-347 B.C.)

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else." — Hon. Sir Owen Dixon, Chief Justice of Australia

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody." —T.H. White, The Once and Future King

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality." — Will Durant