Myers v. Dorsaneo CA1/1 ( 2021 )

Filed 10/18/21 Myers v. Dorsaneo CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publi-
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dered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
CAROL MYERS,
Plaintiff and Respondent,
A161586
v.
ALEXANDRIA DORSANEO, (Marin County
Super. Ct. No.
Defendant and Appellant.
CIV2001048)
Appellant Alexandria Dorsaneo appeals from an order denying
statutory attorney fees under Code of Civil Procedure section 527.6.
Dorsaneo claims she is entitled to fees because Myers, who obtained a
temporary civil restraining order against her, voluntarily dismissed the case
at the outset of the hearing on a full restraining order. We conclude the trial
court did not abuse its discretion in denying fees and affirm.
BACKGROUND1
In her civil harassment petition and papers in opposition to Dorsaneo’s
fee motion, Myers recounted the following scenario:
Dorsaneo rented a room in her home in mid-February 2020, as the
Covid-19 pandemic was accelerating. In mid-April, Dorsaneo told Myers she
We derive the background largely from the papers Myers submitted
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in opposition to Dorsaneo’s fee motion. We realize none of Myers’s proffered
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did not feel well, and Myers, who was then 65 years old, asked Dorsaneo to
quarantine in her room, take her temperature, and check with her doctor
about whether she should be tested for Covid. Dorsaneo “angrily refused.”
Myers then called her own doctor, who told her Dorsaneo “ ‘absolutely needs
to stay in her room and quarantine until she could be Covid tested.’ ”
Myers and Dorsaneo communicated by text and phone. Dorsaneo soon
reported she felt much better and believed she had eaten something that
disagreed with her. Myers nevertheless continued to ask Dorsaneo to remain
quarantined in her room until she spoke with her own doctor. Dorsaneo
refused and hung up.
Later that day, Dorsaneo came out of her room and the two began
arguing, Dorsaneo repeatedly stating she felt fine and was not going to be
tested. Myers felt threatened and started recording Dorsaneo on her cell
phone. The verbal exchange escalated, and Dorsaneo chased Myers into the
garage, tried to grab the phone, and, in the course of doing so, “twisted two of
[Myers’s] fingers, severely bruising and fracturing” one of them. Myers
sought and received medical treatment.
Myers then left her house for eight days, returning for only brief
periods of time. She also retained an attorney to start eviction proceedings
and to seek a temporary restraining order. Dorsaneo then wrote a letter to
Myers stating she had not intended to injure her but was trying to stop the
video recording so the two could discuss the situation. Thereafter, Dorsaneo
evidence was ever tested through cross-examination and countering evidence,
none of the asserted facts were ever found by the trial court to be true, and
the trial court expressly stated in denying fees that it had made no
determination as to the merit of Myers’s civil harassment claim. Nor are we,
in reciting the background, suggesting Myers’ factual assertions are true or
making any pronouncement as to the merit of her claim.
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turned off the house security system, and Myers sought the assistance of the
Sheriff’s Department to turn it on again. Dorsaneo disconnected the system
again. Myers felt she was “once again being threatened.”
Myers obtained a temporary restraining order and also offered to
refund Dorsaneo her April rent if she would move out. When Myers went to
her house with a friend to serve the restraining order, Dorsaneo appeared to
be very angry. Myers feared she “was about to strike me.”
Myers retained new counsel and over the following weeks, the hearing
on a full restraining order was continued several times. Dorsaneo also
retained counsel, and the two attorneys, who knew one another
professionally, spoke a number of times about the case. Dorsaneo’s attorney
eventually pointed out Dorsaneo had long since vacated the house, three
months had passed since the incident, and Dorsaneo had no intent to contact
Myers. Because the “threats and harassment from Ms. Dorsaneo had
passed,” Myers authorized her attorney to dismiss the case.
Accordingly, when the matter was called for hearing, Myers’s attorney
asked the court to dismiss the matter, and the court “thanked [the parties]
for working together and resolving the case without the need to take up
valuable judicial resources.”
Dorsaneo then filed a motion for statutory attorney fees, claiming she
had achieved her litigation objectives and, because the case had been
dismissed, she was the prevailing party and entitled to costs and statutory
fees.
The trial court issued a tentative ruling denying Dorsaneo’s fee motion.
Pointing out that a fee award is discretionary under Code of Civil Procedure
section 527, subdivision (s), the court found that “an award of fees in this case
would have a chilling effect on plaintiffs who file legitimate civil harassment
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restraining order cases and then proceeded to dismiss the case when they no
longer felt such an order was needed.” “Due to the situational nature of the
conflict,” the court did not “believe such an award would be in the interests of
justice, nor would it operate to favor judicial economy, but would rather
prioritize the maintenance of unnecessary cases in an effort to avoid
attorney’s fees.”
At the hearing on the motion, counsel for Dorsaneo stated he
“under[stood] the Court’s logic” that plaintiffs should not be incentivized to
continue restraining order litigation that has become unnecessary in order to
avoid liability for fees. He argued there was a counter-vailing concern,
however—that a plaintiff who obtained an ex parte temporary restraining
order on the basis of untested evidence, could, at the last minute, dismiss the
action, thereby avoiding both proving up the merits and liability for fees, and
dragging a blameless defendant into court without consequences for doing so.
Counsel also renewed his objection to Myers’s opposing evidence that
pertained to the merits of her case.
Myers’s attorney “agree[d] wholeheartedly” with the points made by
Dorsaneo’s counsel, acknowledging there “can be a situation where people
abuse the process” and if the court “had reviewed the papers and felt that
that was the situation, we would be looking at the opposite result.” But,
asserted counsel, that was not what the record showed in the case at hand.
Myers had legitimately sought a temporary restraining order, the two
lawyers had a number of discussions about the case, and after a considerable
passage of time, they “were convinced that this threat had passed.” “Myers
did what any reasonable person would do, is don’t take up the Court’s time,
don’t make this go to trial.”
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The court thanked both counsel, adopted its tentative, and then added
“[j]ust a little color commentary.” It first observed, “it sound[ed] like” the
court and both parties “we[re] all actually on the same page.” The court did
not “disagree with anything either [counsel had] said.” The court “has the
discretion, and [it had] looked at the case.” It had not “evaluated the merits”
and “agree[d] it could go either way.” “It just depends on the circumstances
of the individual case. And, in this one, [counsel], I don’t find it would be
appropriate to grant the fees.” The court concluded by reaffirming the
adoption of its tentative ruling.
DISCUSSION
Code of Civil Procedure section 527.6, subdivision (s) provides: “The
prevailing party in an action brought pursuant to this section may be
awarded court costs and attorney’s fees, if any.”
The established case law makes clear that an award of fees under this
provision lies within the sound discretion of the trial court. (Krug v.
Maschmeier (2009) 172 Cal.App.4th 796, 802 [“the decision whether to award
attorney fees to a prevailing party—plaintiff or defendant—under [Code of
Civil Procedure] section 527.6 . . . is a matter committed to the discretion of
the trial court”].) As Krug observed, “[t]he normal rule of statutory
construction is that when the Legislature provides that a court . . . ‘may’ do
an act, the statute is permissive, and grants discretion to the decision
maker.” (Ibid.)
Code of Civil Procedure section 527.6, subdivision (s) does not, as
Dorsaneo points out, define “prevailing party.” She therefore asserts the
general cost statute, Code of Civil Procedure section 1032, subdivision (a)(4)
supplies the definition. That provision states in pertinent part: “ ‘Prevailing
party’ includes the party with a net monetary recovery, a defendant in whose
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favor a dismissal is entered, a defendant where neither plaintiff nor
defendant obtains any relief, and a defendant as against those plaintiffs who
do recover any relief against that defendant.” (Id., §1032, subd. (a)(4).)
Under this definition, Dorsaneo does, indeed, qualify as the prevailing party.
She therefore variously argues the trial court erred as a matter of law in
denying her fees and/or abused its discretion in doing so since failure to
follow the controlling law constitutes an abuse of discretion.
Myers contends a trial court is not required to use Code of Civil
Procedure section 1032, subdivision (a)(4)’s definition of prevailing party, but
rather, has the discretion to determine prevailing party status based on a
pragmatic approach, i.e., did the plaintiff obtain her litigation objective?
Myers claims she fully achieved her litigation objective—to oust Dorsaneo
from her home and prevent further contact.
No case has held that a trial court must use the definitional provisions
of Code of Civil Procedure section 1032, subdivision (a)(4), to determine
prevailing party status in a civil harassment action. In Adler v. Vaicius
(1993) 21 Cal.App.4th 1770, which Dorsaneo cites, the Court of Appeal
concluded that “[s]ince [Code of Civil Procedure] section 527.6 does not define
‘prevailing party,’ the general definition of ‘prevailing party’ in section 1032
may be used.” (Id. at p. 1777, italics added.) Accordingly, the trial court in
Adler did not abuse its discretion in looking to that section and awarding fees
to the defendant after the plaintiff dismissed her petition to avoid responding
to discovery requests. (Id. at pp. 1773-1774, 1777.) However, in Elster v.
Friedman (1989) 211 Cal.App.3d 1439 (Elster), the appellate court took a
slightly different approach where the parties resolved the case by entering
into a mutual restraining order. The Court of Appeal concluded that the
definitional language of Code of Civil Procedure section 1032(a)(4) “may be
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used to illuminate section 527.6, subdivision (h) [now subdivision (s)],” but
also observed that “[a] plaintiff prevails, in essence, when he gets most or all
of what he wanted by filing the action.” (Elster, at p. 1443, italics added.)
Thus, the trial court in Elster did not abuse its discretion in awarding fees to
the plaintiffs. They achieved all of their specific litigation objectives and had
merely generically agreed not to engage in any harassing conduct themselves,
which “they apparently had never done and had no apparent desire to do.”
(Id. at p. 1444.)
We need not decide whether the definitional provisions of Code of Civil
Procedure section 1032, subdivision (a)(4) do more than provide guidance and
are controlling.
To begin with, it is not at all clear that the trial court disregarded Code
of Civil Procedure section 1032, subdivision (a)(4), as Dorsaneo suggests. She
argued in her moving papers that she was the prevailing party under this
statutory provision, and the trial court did not reject this proposition in either
its tentative ruling or at the hearing on her motion. On the contrary, the
tentative ruling expressly acknowledged this definitional provision.
In any case, what the trial court emphasized both in its tentative ruling
and at the hearing is that, regardless of prevailing party status, an award
fees under Code of Civil Procedure section 527.6, subdivision (s) is committed
to the discretion of the court. The trial court was entirely correct on that
point.
Dorsaneo asserts the trial court nevertheless abused its discretion
because it purportedly adopted a pragmatic rule that wholly undercuts the
supposed right of dismissed defendants to costs and fees under Code of Civil
Procedure section 1032. However, that is not what the trial court did, as the
hearing transcript shows. Rather, both the parties and the court appeared to
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be in agreement that there are civil harassment cases in which a dismissed
defendant should recover statutory fees (such as Adler). As the trial court
observed, “It just depends on the circumstance of the individual case.” In this
particular case, the court determined it did not find it to “be appropriate to
grant the fees,” and that was a call committed to the sound discretion of the
court.
A court’s 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.)
We see no basis in this record to conclude the trial court “manifest[ly]
abuse[d its] discretion” in denying Dorsaneo fees. (Elster, supra,
211 Cal.App.3d at p. 1443.)
DISPOSITION
The order denying statutory attorney fees is AFFIRMED. Each party
to bear its own costs on appeal.
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_________________________
Banke, J.
We concur:
_________________________
Humes, P.J.
_________________________
Margulies, J.
A161586, Myers v. Dorsaneo
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