Rowan v. Kirkpatrick CA1/3 ( 2021 )

Filed 9/13/21 Rowan v. Kirkpatrick CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
REBECCA MARISE ROWAN,
Plaintiff and Respondent,
v.
KYLIE JEAN KIRKPATRICK, A161436
Defendant and Appellant.
(Napa County
Super Ct. No. 20CV000084)
The trial court awarded plaintiff Rebecca Marise Rowan $23,162.50 in
attorney fees as the prevailing party in a civil harassment action (Code Civ.
Proc., § 527.6, subd. (s)).1 Kylie Jean Kirkpatrick appeals in propria persona.
She contends the court abused its discretion by awarding “excessive” attorney
fees.
We disagree and affirm.
BACKGROUND
In early 2020, Rowan filed a request for civil harassment restraining
order against Kirkpatrick. Rowan alleged Kirkpatrick posted threatening
and defamatory comments about her on social media and engaged in other
1 Undesignated statutory references are to the Code of Civil Procedure.
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threatening behavior. Kirkpatrick, acting in propria persona, filed a request
for a restraining order against Rowan. Rowan filed a response. The court
consolidated the restraining order requests. Kirkpatrick refused to stipulate
to a commissioner hearing the matters and the parties agreed to continue the
hearing to February 24, 2020.
Kirkpatrick, however, failed to appear on that date. The trial court
held an evidentiary hearing in her absence and granted Rowan’s request for
a restraining order (§ 527.6). It dismissed Kirkpatrick’s restraining order
request without prejudice due to her failure to appear. Two days after the
hearing, Kirkpatrick filed a “Supplemental Evidentiary Submission”
supporting her restraining order request. Rowan moved to strike the
submission. Later, at Rowan’s request, the court declared Kirkpatrick
a vexatious litigant (§ 391).2 Two months later, Kirkpatrick filed ex parte
applications seeking reconsideration of the restraining order and the
vexatious litigant finding. The court denied the applications.
In June 2020, Rowan moved for approximately $70,000 in statutory
attorney fees. As relevant here, Rowan argued her attorneys spent more
than 100 hours “successfully defending [Rowan] against Kirkpatrick’s
retaliatory request for a restraining order” and successfully seeking
a restraining order and vexatious litigant finding against Kirkpatrick.
Rowan claimed “Kirkpatrick’s frivolous submissions and delay tactics”
increased her attorney fees. Kirkpatrick did not oppose the motion. At
an unreported hearing, the court ordered Rowan to provide a detailed
breakdown of the fees incurred and permitted Kirkpatrick to file a response.
2 Kirkpatrick appealed from the orders on the parties’ restraining
order requests and from the order declaring her a vexatious litigant. This
court dismissed the appeal as untimely. (Rowan v. Kirkpatrick (2020)
54 Cal.App.5th 289, 291.)
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Rowan’s attorneys offered supplemental declarations averring Rowan
incurred attorney fees for prosecuting and defending the restraining order
requests, prosecuting the vexatious litigant motion, and filing the attorney
fee motion. The declarations attached charts detailing the attorneys’ hourly
rates and the number of hours expended on these tasks. Kirkpatrick filed an
opposition. She argued Rowan sought the restraining order in bad faith.
In October 2020, the court issued a written order partially granting the
motion. As relevant here, the court determined Rowan, as the prevailing
party, was “entitled to be compensated” for reasonable attorney fees under
section 527.6, subdivision (s). The court observed that Kirkpatrick’s
conduct—her continuance requests, ex parte applications, and late filed
documents—increased the cost of the litigation; the court also noted the “facts
underlying the restraining orders required more inquiry than the ‘typical’
civil restraining orders.” But it characterized Rowan’s request for
approximately $70,000 in attorney fees as “excessive.” After carefully
examining the parties’ pleadings and relying on its experience evaluating
attorney fee requests, the court awarded Rowan $23,162.50 in attorney fees.
The court provided a detailed explanation of the fees awarded.
Kirkpatrick moved for reconsideration. She urged the court to “review
[her] finances in order to make a realistic and reasonable award” but
provided no evidence of her financial circumstances. The court denied the
motion. Kirkpatrick timely appealed from the attorney fee order.
DISCUSSION
Section 527.6, subdivision (s) authorizes a trial court to award attorney
fees to the prevailing party in a civil harassment action. (See Krug v.
Maschmeier (2009) 172 Cal.App.4th 796, 802.) The court’s prevailing party
determination, and its decision to award attorney fees to that party, are
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“matter[s] committed to the discretion of the trial court.” (Ibid.; Elster v.
Friedman (1989) 211 Cal.App.3d 1439, 1443.) The “court’s exercise of
discretion will not be disturbed on appeal in the absence of a clear showing
of abuse, resulting in injury sufficiently grave as to amount to a manifest
miscarriage of justice. [Citations.] ‘ “The appropriate test for abuse of
discretion is whether the trial court exceeded the bounds of reason. When
two or more inferences can reasonably be deduced from the facts, the
reviewing court has no authority to substitute its decision for that of the trial
court.” ’ ” (In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 682.)
Kirkpatrick has the burden to demonstrate the trial court abused its
discretion in awarding attorney fees to Rowan. (Taylor v. County of Los
Angeles (2020) 50 Cal.App.5th 205, 209.) She has not met that burden.
Rowan is undoubtedly the prevailing party because she sought and obtained
a restraining order against Kirkpatrick. (Elster v. Friedman, supra,
211 Cal.App.3d at p. 1443.) By contrast, Kirkpatrick did not obtain the relief
she sought against Rowan. (Adler v. Vaicius (1993) 21 Cal.App.4th 1770,
1777.) Nor has Kirkpatrick demonstrated an abuse of discretion in the
amount of the award. The attorney fee award is not—as Kirkpatrick
contends—“excessive.” The court characterized Rowan’s request for
approximately $70,000 in attorney fees as “excessive” and declined to award
that amount. Instead, the court, after considering the complexity of the
matter and the ways in which Kirkpatrick’s conduct increased Rowan’s
attorney fees, and by relying on its experience evaluating such fee requests,
awarded significantly less. Under the circumstances, the court acted well
within its discretion by awarding Rowan attorney fees of $23,162.50 pursuant
to section 527.6, subdivision (s). (See PLCM Group, Inc. v. Drexler (2000)
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22 Cal.4th 1084, 1095; Meridian Financial Services, Inc. v. Phan (2021)
67 Cal.App.5th 657, 709.)
The cases and federal statutes upon which Kirkpatrick relies do not
compel a different result. And Kirkpatrick’s other arguments are not
persuasive. In this appeal from the attorney fee order, we cannot revisit the
merits of the court’s earlier order issuing a restraining order against
Kirkpatrick. Nor will we reverse the attorney fee order because the court
“did not hold a financial review” before fixing the amount of fees. Kirkpatrick
did not request such a review until after the court issued the attorney fee
order, and she has cited no authority requiring a trial court to make a
sua sponte ability-to-pay determination where a party has offered no
evidence of her financial circumstances. (Upshaw v. Superior Court (2018)
22 Cal.App.5th 489, 504, fn. 7 [issues not raised or supported by substantive
argument or citation to authority are waived].)
DISPOSITION
The October 2020 order is affirmed. Rowan is entitled to costs on
appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
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_________________________
Chou, J.*
WE CONCUR:
_________________________
Fujisaki, Acting P. J.
_________________________
Petrou, J.
A161436
*Judge of the Superior Court of San Mateo County, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.
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