Scott v. Smith

Filed 8/16/06 Scott v. Smith CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order and judgment of the Superior Court of San Diego County, Richard S. Whitney and Michael B. Harris, Judges. Affirmed.

Plaintiff and appellant Paul C. Scott's petition for injunction prohibiting civil harassment, filed against respondent Bill Smith, was denied. (Code Civ. Proc., § 527.6; all statutory references are to this code unless otherwise specified.) Scott now appeals an order and judgment granting Smith's request, as prevailing party, for attorney fees and litigation costs in the amount of $3,800. (§§ 527.6, subd. (i); 1032.) Scott contends the court erred and/or abused its discretion in its application of section 527.6, in light of several specific factors in the record, which in his opinion should countermand any fee award that was based on a prevailing party determination. We find the order and judgment represent an appropriate exercise of discretion on this record and affirm.

STATEMENT OF FACTS

Scott and Smith are former business partners who each still has his own separate business, located on the same block in El Cajon. They have had various personal disputes, including one over the validity of Smith's claims about his military record. On December 16, 2004, Scott, acting in propria persona, filed a petition for injunction prohibiting civil harassment, contending that Smith had tried to run him over with his truck.

Scott obtained a temporary restraining order and an order to show cause why an injunction prohibiting harassment should not issue after hearing. Smith filed a response to the petition on January 6, 2005, which included numerous declarations by business associates and others, to the effect that Scott was the more troublesome party of the two. Smith also provided records of other actions in which Scott had been involved, seeking judicial notice to demonstrate that Scott was litigious, had made similar allegations about other people trying to run him over, and that this should support an inference that this action was unmeritorious.

The hearing on February 18, 2005 before Judge Harris (referred to here as the trial court) took approximately two hours. At the outset, the trial court stated that it was not going to consider the judicial notice materials or third party declarations, because of concerns about their admissibility under Evidence Code sections 1101 and 1102. However, the court also noted that it normally read the declarations filed in such cases before taking the bench, and had considered them as background. According to the trial court, the testimony presented would be the dispositive evidence.

In Scott's testimony, he stated that he had trouble with Smith on many occasions and had been advised by police officers to get a restraining order. Testimony was also received from an El Cajon police officer who had responded to one of Scott's allegations that Smith had violated the restraining order, and had cited Smith after Scott made a citizen's arrest. Smith gave his version of the incident, stating that things had been mellow for a while after the business break-up, but had flared up recently, and that he generally tried to avoid Scott at their business locations. Although he was cited for violation of the restraining order, that case was dismissed for lack of evidence.

At the conclusion of trial, Judge Harris ruled in favor of Smith, commenting that although he was disturbed by Smith's comments about the nature of his interactions with Scott, he could not find that Scott had provided clear and convincing proof of the type of harassment covered by the statute. (§ 527.6, subd. (c).)

On March 17, 2005, Smith filed a motion for attorney fees and litigation costs under section 527.6, subdivision (i), seeking an award of $13,741.14. His attorney represented that she had attempted to persuade Scott's attorney not to proceed with the case, in light of the evidence in the opposing papers she had prepared, and she indicated that fees would be sought. However, Scott proceeded with the matter.

Hearing on the motion was set for April 29, 2005. At that time, Judge Harris was unavailable, and the matter was assigned to Judge Whitney (sometimes referred to here as the assigned judge). He explained that he was going to take the matter under submission and read it, and he clarified with counsel the contents of the file. Counsel for Scott then reminded the assigned judge that the trial court had previously declined to consider the requested judicial notice material and declarations about other lawsuits and incidents in which Scott had been involved. Scott's attorney also stated that no more than $1,500 fees would be justified in this matter, if any at all were to be awarded. Counsel for Smith responded that she believed that all the material presented had been appropriately obtained as background investigation to adequately defend this case, which threatened to impinge on Smith's liberty interests.

After hearing the arguments of counsel, the assigned judge commented that he understood the issues and would read everything in detail and issue an opinion. Shortly thereafter, he issued a letter ruling, awarding Smith $3,800. Judgment was issued accordingly on June 27, 2005.

Scott appeals the judgment and order awarding attorney fees and costs.

DISCUSSION

I

STATUTORY SCHEME

Under section 527.6, subdivision (i), "The prevailing party in any action brought under this section may be awarded court costs and attorney's fees, if any." Scott contends the assigned judge misapplied section 527.6 by concluding that Smith was entitled to fees and costs in any amount, in light of the trial judge's rulings to exclude certain evidence. According to Scott, the award lacks any reasonable basis in the record.

Scott also contends that this statutory scheme disfavors attorney fees awards, since it originated as an expeditious proceeding suitable for laypersons to pursue, using court-approved forms. Scott initiated these proceedings in propria persona, after receiving advice from El Cajon police to seek such a restraining order, based on previous complaints he had made about Smith's behavior. He accordingly suggests that fee shifting is inappropriate under these circumstances. However, under section 527.6, subdivision (e), parties to such a proceeding are not precluded from obtaining representation by private counsel, and both parties had retained counsel by the time of the hearing. After trial, the court determined that Scott had not met his burden of proof of showing clear and convincing evidence to support the requested order, and denied the petition. (§ 527.6, subd. (c).) Smith, as prevailing party, then brought the subject motion for costs and attorney fees.

Under section 527.6, subdivision (i), such an award may be made, in the court's discretion, to the prevailing party. (Adler v. Vaicius (1993) 21 Cal.App.4th 1770, 1777 (Adler); Elster v. Friedman (1989) 211 Cal.App.3d 1439, 1443 (Elster).) "Since section 527.6 does not define 'prevailing party,' the general definition of 'prevailing party' in section 1032 may be used. [Citation.] Section 1032, subdivision (a)(4), provides that ' "Prevailing party" includes . . . a defendant in whose favor a dismissal is entered . . . .' " (Adler, supra, at p. 1777.) A fees award under these circumstances will be reversed only if there has been a prejudicial abuse of discretion. (Elster, supra, at p. 1443.)

II

APPLICATION TO RECORD

Scott argues the assigned judge's fee order represents an abuse of discretion in several respects. First, he claims there is no basis in the record for the award except for the prevailing party determination, since the trial court did not consider the materials for which judicial notice was requested nor the other declarations, but rather stated that it considered the testimony to be the main evidence. Therefore, Scott believes the assigned judge, who received the matter later, lacked any evidence on which to exercise his discretion. Scott thus argues that even though the statute provides for a discretionary fee award, the assigned judge must have erroneously interpreted the statute as mandating an award, simply because Smith had prevailed when the petition was denied.

Further, Scott argues he should not be financially penalized for filing the petition in propria persona, pursuant to suggestions by police officers to obtain a restraining order, and suggests he should receive the benefit of the doubt, assuming that the trial court must have considered this to be a close case (based on its comment that it was disturbed by Smith's testimony about his admitted behavior toward Scott). Scott therefore claims the effect of this award is contrary to the overall purpose of the statutory scheme.

Scott's arguments are not well taken. Under the abuse of discretion standard, we do not view the subject ruling piecemeal, but instead look to the totality of the circumstances leading to the fees application. (Adler, supra, 21 Cal.App.4th at p. 1777; Elster, supra, 211 Cal.App.3d at p. 1443.) The assigned judge was required to evaluate the matter as he received it, and the order is not defective simply because the trial court was unavailable. The record shows the assigned judge made diligent efforts to acquaint himself with the file in order to make an informed exercise of discretion in the matter he was required to hear. He had the case file before him, heard the arguments of counsel regarding the admissibility of evidence, stated that he understood the issues, and undertook to read everything in detail.

Even though the subsequent letter ruling did not explain the assigned judge's reasoning, the award of $3,800 appears to be within a reasonable range of discretion for a half-day trial on a contested matter. The file contained significant amounts of written material prepared by Smith's attorney. Even though some of it was not ultimately admitted into evidence by the trial court, it was still within the assigned judge's discretion to review the case file with that limitation in mind. The assigned judge had these objective criteria to consider and the record strongly indicates he understood the proper scope of inquiry into the matter. The record does not support an inference that he based his determination solely upon the prevailing party determination; if that were so, he would have awarded the full $13,741.14 requested.

Moreover, the fees award was not contrary to the terms or purpose of section 527.6, subdivision (i), simply because Scott had originally proceeded in propria persona. Section 527.6, subdivision (e) protects the rights of parties to such a proceeding to obtain representation by counsel, and such representation will ordinarily lead to the expense of attorney fees. At the time of hearing, counsel for Smith sought to persuade counsel for Scott to drop the matter, based on the opposition prepared, and Scott and his attorney had the opportunity to reevaluate his case at that time. When Scott decided to proceed, he ran the normal risk that a fees award might be sought and granted. The statutory scheme expressly allows for such an award and none of the circumstances here precludes one. No prejudicial abuse of discretion has been demonstrated based on either the nature of the allegations, the evidence, or the procedure followed at trial or in the fees application.

Finally, where a party is authorized to recover attorney fees at the trial level, attorney fees incurred on appeal may also be awarded. (Byers v. Cathcart (1997) 57 Cal.App.4th 805, 813.) Depending on the outcome of this appeal, both parties are seeking attorney fees on appeal. (§ 527.6, subd. (i).) Smith further argues the basic award was too small, but he has not filed any cross-appeal to challenge the exercise of discretion in making the award.

Since we have determined that the current attorney fee award to Smith represents an appropriate exercise of discretion on this record and must be upheld, we are next presented with Smith's request in his respondent's brief that this court award further attorney fees and costs on appeal ($1,950). However, this request is not supported by any factual showing, and we deem it an appropriate exercise of our discretion to deny any further award and to bring this matter to a conclusion.

DISPOSITION

The order and judgment are affirmed. The request for attorney fees and costs on appeal is denied. Each party to bear his own costs.

HUFFMAN, Acting P. J.

WE CONCUR:

HALLER, J.

AARON, J.

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