Filed 3/15/22 Bullock v. Anderson CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from an order of the Superior Court of Los Angeles County, Emily T. Spear, Judge. Reversed.

Steven Michael Tamer and Tamer Law for Plaintiff and Appellant.

No appearance for Defendant and Respondent.

INTRODUCTION

Jodie Bullock petitioned for a civil harassment restraining order against Nicole Anderson pursuant to Code of Civil Procedure section 527.6.[1] The trial court dismissed the petition without prejudice and awarded attorneys’ fees to Anderson. On appeal, Bullock challenges only the attorneys’ fees award. We reverse the trial court’s order awarding attorneys’ fees to Anderson.

FACTUAL AND PROCEDURAL BACKGROUND

Bullock petitioned for a civil harassment restraining order against Anderson in July 2020. Bullock was unable to attend the initial hearing set in August 2020 because she was ill. The trial court continued the matter to September 2020, but Bullock was again unable to attend because of health issues. Anderson’s lawyer requested the trial court dismiss the matter without prejudice as her client was leaving town for several months and Bullock could refile the petition at a later time if necessary. She also stated she had filed an opposition to the civil harassment restraining order and it included a request for attorneys’ fees. Bullock’s attorney objected to the request for attorneys’ fees, arguing Bullock had not requested attorneys’ fees in another case where Anderson petitioned for a civil harassment order against Bullock.[2] Moreover, Bullock’s attorney argued Anderson was not the prevailing party. The trial court awarded attorneys’ fees to Anderson, albeit in an amount less than requested, and dismissed the matter without prejudice.

DISCUSSION

1. The Trial Court Erred by Awarding Attorneys’ Fees

Bullock argues the trial court’s award of attorneys’ fees violated California Rule of Court 3.1702. More specifically, Bullock argues her attorney had no opportunity to respond to the request for attorneys’ fees because Anderson did not file a noticed motion or pleading seeking fees.

“A party may seek statutory attorney’s fees as costs through any of four methods: (1) on noticed motion; (2) at the time a statement of decision is rendered; (3) on application supported by affidavit made concurrently with a claim for other costs; or (4) on entry of a default judgment. [(§ 1033.5, subds. (a)(10)(B) & (c)(5).)] In practice, however, a noticed motion is generally required. [Citations.] This is because rule 3.1702 of the California Rules of Court prescribes a noticed motion procedure whenever the court is required to determine whether the requested fee is reasonable or whether the requestor is a prevailing party. (Cal. Rules of Court, rule 3.1702; see 2 Pearl, California Attorney Fee Awards (3d ed. 2018) § 11.26, p. 11-30 [‘Unless otherwise provided by statute, a noticed motion is required to claim attorney fees.’].)” (Hardie v. Nationstar Mortgage LLC (2019) 32 Cal.App.5th 714, 720 (Hardie).)

Section 527.6, subdivision (s), provides: “The prevailing party in an action brought under this section may be awarded court costs and attorney’s fees, if any.” Because this statute requires the trial court to determine whether the defendant was a prevailing party, and the reasonableness of any attorneys’ fees requested, “good reason exists” for the required noticed motion. (612 South LLC v. Laconic Limited Partnership (2010) 184 Cal.App.4th 1270, 1284.) Section 527.6, subdivision (s), “contains no statutory exception to the noticed motion requirement.” (Hardie, supra, 32 Cal.App.5th at p. 720.)

While the reporter’s transcript shows Anderson’s attorney stated she filed a response to the civil harassment restraining order containing a request for attorneys’ fees, we could not locate a copy of the document in the file.[3] Instead, the record reflects Anderson’s counsel’s oral request at the end of the hearing was her first and only request for attorneys’ fees. Anderson did not satisfy the requirement of a properly noticed motion. (Hardie, supra, 32 Cal.App.5th at p. 720.)

Because Anderson did not file a brief, we decide the appeal solely on the record, the opening brief and any oral argument by Bullock, and reverse only if prejudicial error is found. (Cal. Rules of Court 8.220(a)(2); see Griffin v. Haunted Hotel, Inc. (2015) 242 Cal.App.4th 490, 505 [“if a respondent in a civil case files no brief at all, we still examine the record to see if it supports any claims of error made by the appellant.”]; Smith v. Smith (2012) 208 Cal.App.4th 1074, 1077-1078 [appellant “still bears ‘the affirmative burden to show error whether or not the respondent’s brief has been filed’ and we ‘examine the record and reverse only if prejudicial error is found.’”].) As discussed above, Bullock has met her burden on appeal to show prejudicial error. We therefore reverse the attorneys’ fee award.[4]

2. The Trial Court’s Continuance

At the outset of her opening brief, Bullock states she appeals only the award of attorneys’ fees, not the dismissal of the petition for civil harassment restraining order. We therefore need not address Bullock’s contention that the trial court violated its own order by scheduling the continued hearing in September instead of November.

DISPOSITION

We reverse the order awarding attorneys’ fees. Appellant is awarded costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CURREY, J.

We concur:

WILLHITE, Acting P.J.

COLLINS, J.

[1] All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

[2] While not entirely clear, it appears Anderson petitioned for more than one civil harassment order against Bullock, but those petitions were dismissed by the trial court.

[3] We asked Bullock’s counsel to provide a conformed copy or indicate the document was not filed. In response, he submitted a declaration stating that based on his review of the trial court register of actions and his office file, Anderson did not file the document.

[4] Because we reverse the award of attorneys’ fees, we need not discuss Bullock’s alternative argument that the attorneys’ fee award was punitive.