Cohen-Sitt v. Bennett

Filed 7/19/06 Cohen-Sitt v. Bennett CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael R. Hoff, Judge. Reversed.

Evan Bennett, in propria persona, for Defendant and Appellant.

Mark Mitchell Geyer for Plaintiff and Respondent.

Defendant Evan Bennett appeals from the trial court's order granting an injunction under Code of Civil Procedure section 527.6 prohibiting him from harassing plaintiff Miriam Cohen-Sitt and her husband, and from the order awarding plaintiff attorney fees of $2,745.[1] On appeal, defendant seeks reversal of the attorney fee award on the ground that plaintiff failed to request attorney fees in her petition for the injunction, and that defendant had no notice of the request. We conclude that although plaintiff was not required to request attorney fees in her petition, nevertheless defendant was deprived of fair notice of the attorney fees request, and of the opportunity to be heard. Therefore, we reverse the attorney fee award.

BACKGROUND

Plaintiff petitioned for a temporary restraining order and injunction against defendant under section 527.6.[2] Defendant does not challenge the injunction itself. Thus, we simply note that the evidence at the hearing on the order to show cause demonstrated that on February 22, 2005, defendant confronted plaintiff after a meeting of their condominium homeowner's association in Calabasas, California. Defendant, who weighs 320 pounds, blocked plaintiff's passage and said he would make her and her husband's life miserable. The next morning, plaintiff observed that the driver's side of her car was covered with a key scratch. Defendant had made similar previous threats, and had made harassing phone calls to plaintiff's residence. He had also told a neighbor that he would like to kill most of the Board members, including plaintiff's husband.

Plaintiff's petition was made on Judicial Council Form CH 100, and signed by plaintiff.[3] The petition did not request attorney fees from defendant; the appropriate box on the form was left blank. Defendant answered the petition on Judicial Council Form CH 110. Prepared in consultation with counsel, the form requested attorney fees from plaintiff with a check mark in the appropriate box.

After issuing a temporary restraining order, the court held an evidentiary hearing on its order to show cause. At the hearing, plaintiff was represented by counsel; defendant was in pro per (though with the court's permission he had an attorney present as an advisor, if needed).

In his opening statement, plaintiff's counsel did not mention the subject of attorney fees. During the evidentiary portion of the hearing, the subject of attorney fees was mentioned once, in the testimony of plaintiff's husband, Ezra Cohen-Sitt. He testified that he and his wife had incurred $1,850 in attorney fees in connection with the case.

After the presentation of evidence, plaintiff's counsel did not make an opening argument. Defendant then argued against issuance of the injunction. Plaintiff's counsel then gave rebuttal argument. During his argument, for the first time he requested attorney fees (albeit impliedly). He stated: â€