Bolander v. Bolander CA1/2 ( 2013 )

Filed 7/25/13 Bolander v. Bolander CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
RINSKE BOLANDER,
Plaintiff and Respondent,
A133834
v.
FREDERICK BOLANDER, (San Mateo County
Super. Ct. No. CIV 492551)
Defendant and Appellant.
RINSKE BOLANDER,
A134509
Plaintiff and Appellant,
v. (San Mateo County
Super. Ct. No. CIV 492551)
FREDERICK BOLANDER,
Defendant and Respondent.
Plaintiff Rinske Bolander (Rinske) sued her now ex-husband, defendant Frederick
(Rick) Bolander, for domestic violence after he twice drugged her with Ambien and
engaged in nonconsensual sexual intercourse with her while she was incapacitated.1 A
jury found in favor of Rinske, awarding her $30,000 in economic damages, $175,000 in
noneconomic damages, and $200,000 in punitive damages, for a total award of $405,000.
After the trial, Rinske filed a motion for attorney’s fees, seeking $455,600 plus a
1.5 multiplier, and a memorandum of costs seeking $155,622. The trial court denied
1
For clarity, and as is common in cases involving spouses, we refer to the parties
by their first names. We intend no disrespect.
1
Rinske’s fee request and, on Rick’s motion to tax costs, awarded Rinske only a fraction
of the costs requested.
Both sides appeal. Rick’s appeal asserts multiple errors that he claims require
reversal of the judgment. We reject his arguments, and we affirm the judgment.
Rinske’s appeal argues that the trial court abused its discretion in denying her
request for attorney’s fees in its entirety and in rejecting a substantial portion of her costs.
We conclude that, based on a misunderstanding of the applicable law, the trial court
abused its discretion in ruling on Rinske’s requests for fees and costs. We therefore
remand for the trial court to reconsider Rinske’s motion for attorney’s fees and Rick’s
motion to tax costs in a manner consistent with this decision.
FACTUAL BACKGROUND
Rick and Rinske met in 1995 and dated for two years before marrying in 1997.
The relationship was characterized by an active sex life, with Rick having very high
expectations concerning the frequency of sexual intercourse. He expected sex “every day
or sometimes twice a day” when he was not away on business.
The marriage produced four children, all very close in age.2 By the time Rinske
had their second child, she was worn out from the demands of motherhood. Despite her
exhaustion, Rick maintained very high expectations in terms of their sex life. His sexual
demands were becoming a burden to Rinske, and by 2006, the marriage was strained.
The couple sought help from a marriage counselor, and Rinske began to communicate to
Rick that she needed rest and that she wanted to have sex less frequently. Despite her
request, Rick’s expectations did not lessen. In fact, his demands increased, and he
wanted to have sex with Rinske “a couple different times every morning and every
evening.” Rinske felt worn down by his demands, and began to reject Rick’s advances
more and more. Rick took it personally and became angry.
2
At the time of the incidents that were the subject of Rinske’s lawsuit, the children
were three, five, six, and seven years old.
2
By early January 2007, after a weekend away when the couple had intercourse
seven times, Rinske told Rick that she was no longer able to acquiesce in his sexual
demands. She wanted him to treat her with respect and to recognize and honor her needs
and feelings. She began sleeping on a small cot in the youngest child’s nursery instead of
in the master bedroom with Rick. Rick responded with anger and isolation, questioning
Rinske’s love for, and commitment to, him.
On March 7, 2007, Rick, who had been traveling for work, arrived home around
8:00 p.m., after the children had gone to bed. He opened a bottle of red wine in the
kitchen and, out of Rinske’s view, poured her a glass. Unbeknownst to Rinske, Rick then
put one-half of an Ambien tablet in the wine.3 After drinking the glass of wine, Rinske
“fell asleep and . . . kind of nodded [herself] awake.” As she described it at trial, “I didn’t
feel well, but I was also very concerned that I fell asleep because I had never nodded off,
you know—even given all the strange hours with all the kids, I never nodded off at the
table, but I kind of nodded myself awake. I did not feel well. I felt very nauseous and
light-headed and dizzy. And I just did not feel well. I didn’t know what was happening.”
Because Rinske felt ill, she told Rick she was going to go to bed. She walked
upstairs to the bedroom and “just fell in bed.” The next thing she remembered was Rick
on top of her having sex with her. She was unable to speak or move her arms: “I
remember not being able to move my arms. And I remember not being able to speak. I
remember feeling like I was under water. And my vision—I could see directly in front of
me but not—everything else was kind of faded out, but I couldn’t move.” She did not
want to be having sex with Rick, and she was terrified because she was “frozen.”
Rinske’s next memory was waking up in the morning and immediately asking
Rick if they had had intercourse. He told her they had, describing it as “wonderful.” She
asked if he had worn a condom, and he told her, with a smile, he had not. Rinske feared
he was trying to get her pregnant so she would not leave him.
3
Rick obtained a prescription for Ambien from a former fraternity brother who
was a physician. He filled the prescription on March 7, 2007, the same day he drugged
Rinske for the first time.
3
Rinske then went into the bathroom to take a shower. In the shower, she fell down
when she closed her eyes to rinse her hair. She lost her balance and “felt very disoriented
like the room was spinning . . . .”
A second, similar incident occurred seven weeks later. On the evening of
April 22, 2007, Rick poured Rinske a glass of wine to drink with dinner. Again, he laced
it with Ambien without Rinske’s knowledge. After the children went to bed, Rick and
Rinske sat down to watch a movie in the family room, with Rick getting up during the
movie to get them more wine. As they were watching the movie, Rinske suddenly
experienced double vision, so she sat up and tried to regain her normal vision. An erotic
scene set in a strip club then came on, and Rick moved next to Rinske on the couch,
telling her that the scene was exciting and he wanted to touch her. She told him to focus
on the movie because she did not want to have sex. She suddenly felt “really drunk,”
“wasted,” “just like a rag doll.” Despite Rinske having told Rick she did not want to
have sex, he unbuttoned her shirt and began to fondle her. Rinske was “completely out of
it” and could not say “No,” or tell him to stop. Rick performed oral sex on Rinske, and
then forced her to perform it on him, only stopping when she gagged from his forceful
thrusting. He then engaged in sexual intercourse with her, first from the front and then
from the back, at one point forcing her head down onto the ottoman and pulling her hair
tight. Rinske’s last memory of the incident was seeing the gray leather of the ottoman.
When Rinske woke up the next morning, she was in the master bedroom. She felt
“heavy-headed,” “off-center,” and disoriented. Rick, who was in the room getting ready
for work, described their sex of the night before, again proclaiming it “wonderful.”
On April 27, five days after the second incident, Rinske walked in on Rick in the
kitchen as he was slipping Ambien into a glass of red wine he had just poured for her.
Although he initially denied it, he subsequently admitted that he had put Ambien in her
wine on the two prior occasions, claiming he did it to reignite the love they had and save
their relationship. He maintained, however, that the sex was consensual.
4
As a result of the incidents, Rinske suffered severe emotional distress and physical
manifestations in the form of posttraumatic stress disorder (PTSD) that required
extensive therapy.
PROCEDURAL BACKGROUND
On March 3, 2010, Rinske filed a complaint alleging four causes of action:
(1) spousal rape (Pen. Code, § 262); (2) sexual battery (Civ. Code, § 1708.54);
(3) domestic violence (§ 1708.6); and (4) intentional infliction of emotional distress.
Rick answered on April 9.
On June 27, 2011, Rinske dismissed her first, second, and fourth causes of action,
apparently because they were barred by the statute of limitations. As a result, only her
claim for domestic violence under section 1708.6 remained.
On June 30, 2011, Rick filed a motion for judgment on the pleadings, seeking
dismissal of Rinske’s domestic violence claim. He argued that her allegations did not
constitute domestic violence because she did not allege bodily injury. Instead, they could
only be asserted as a claim for sexual battery under section 1708.5, which claim she had
already dismissed as time-barred. The trial court denied Rick’s motion.
Trial commenced with jury selection on July 5, 2011. Testimony began on July 12
and concluded after seven days of testimony. After both parties had rested, Rick moved
for a directed verdict, again arguing that due to the absence of bodily injury, Rinske’s
claim did not fit the elements of domestic violence but rather described sexual battery,
which claim was time-barred. The trial court denied this motion as well.
Following closing arguments on July 21, the jury briefly deliberated before
retiring for the day. The next day the jury returned with a verdict for Rinske, awarding
her $30,000 in economic damages, $175,000 in non-economic damages, and $200,000 in
punitive damages, for a total award of $405,000.
4
All subsequent statutory references are to the Civil Code except where otherwise
stated.
5
After trial, Rick filed motions for judgment notwithstanding the verdict and new
trial. Both argued that Rinske failed to establish that he intentionally or recklessly
inflicted physical harm upon Rinske or caused her apprehension of serious bodily injury.
Both were premised on his previously urged—and previously rejected—argument that
Rinske’s domestic violence claim was not properly before the jury because her evidence
did not fit the elements of such a claim. Instead, he again contended, her allegations fit a
claim for spousal rape or sexual battery, both of which she had dismissed prior to trial as
barred by the statute of limitations. On October 25, 2011, the trial court denied both
motions.
Meanwhile, as will be detailed below, on August 19, 2011, Rinske filed a
memorandum of costs seeking $155,622, and on September 8, 2011, she moved for
attorney’s fees of $455,600 plus a 1.5 multiplier and $10,000 for the fee motion itself.
The trial court denied her fee request and, on Rick’s motion to tax costs, rejected a
majority of her requested costs. An amended judgment was entered on December 22,
2011, awarding Rinske $17,280 in costs.
Both parties timely appealed, Rick from the judgment, and Rinske from the orders
denying her fees and taxing her costs and from the amended judgment. We ordered the
appeals consolidated.
DISCUSSION—RICK’S APPEAL
A. Sexual Assault Is Actionable Under the Domestic Violence Statute
In what one might consider Rick’s primary argument—a lengthy one consuming
14 pages of his opening brief—he contends that Rinske’s section 1708.6 domestic
violence claim was not properly before the jury. This argument is premised on the same
theory that he unsuccessfully advocated in his four motions, for: judgment on the
pleadings, directed verdict, judgment notwithstanding the verdict, and new trial. As he
explains it, the facts alleged by Rinske—namely, that he drugged her with Ambien and
had nonconsensual sex with her—describe a claim for sexual battery pursuant to
6
section 1708.5.5 Even if true, which he denies, they would not constitute domestic
violence because Rinske neither alleged nor demonstrated at trial that she suffered bodily
injury or apprehension of imminent serious bodily injury, an element section 1708.6
unambiguously requires. He submits the issue is one of statutory interpretation and that
claims under sections 1708.5 and 1708.6 are mutually exclusive, with section 1708.5 a
specific statute that governs over section 1708.6. According to Rick, “spousal rape is
simply not the equivalent of ‘bodily injury.’ ” And, he submits, Rinske should not have
been permitted to resurrect her time-barred and dismissed claims of rape and sexual
battery under the guise of domestic violence. We are not persuaded.
To begin with, the legislative history of section 1708.6 belies Rick’s assertion that
the two statutes are mutually exclusive. In its analysis of Assembly Bill 1933
(2001-2002 Reg. Sess.), which was ultimately codified as section 1708.6, the Assembly
Committee on Judiciary observed that Assembly Bill 1933 and Assembly Bill 1928
(2001-2002 Reg. Sess.), which would become section 1708.5, “overlap somewhat as to
the acts that would be actionable under each . . . .” Similarly, the Assembly Republican
Bill Analysis of Assembly Bill 1933 noted that the two statutes “would both overlap with
5
Under section 1708.5, subdivision (a), a person who does any of the following
commits a sexual battery: “(1) Acts with the intent to cause a harmful or offensive
contact with an intimate part of another, and a sexually offensive contact with that person
directly or indirectly results. [¶] (2) Acts with the intent to cause a harmful or offensive
contact with another by use of his or her intimate part, and a sexually offensive contact
with that person directly or indirectly results. [¶] (3) Acts to cause an imminent
apprehension of the conduct described in paragraph (1) or (2), and a sexually offensive
contact with that person directly or indirectly results.”
Section 1708.6 provides in pertinent part: “A person is liable for the tort of
domestic violence if the plaintiff proves both of the following elements: [¶] (1) The
infliction of injury upon the plaintiff resulting from abuse, as defined in subdivision (a) of
Section 13700 of the Penal Code. [¶] (2) The abuse was committed by the defendant, a
person having a relationship with the plaintiff . . . .”
Penal Code section 13700, subdivision (a) defines “abuse” as “intentionally or
recklessly causing or attempting to cause bodily injury, or placing another person in
reasonable apprehension of imminent serious bodily injury to himself or herself, or
another.”
7
existing law and each other . . . .” And the statutory provisions themselves both state that
“The rights and remedies provided in this section are in addition to any other rights and
remedies provided by law.” (§ 1708.5, subd. (e); § 1708.6, subd. (d).)
Moreover, Rick fails to cite any authority supporting this position. And existing
authority is to the contrary.
In Pugliese v. Superior Court (2007) 146 Cal.App.4th 1444, the wife had been
subjected to numerous acts of abuse by her husband. Like here, the wife’s claims for
assault and battery were time-barred, so the court considered whether she could assert the
same claims as a domestic violence cause of action under section 1708.6. In holding that
she could, it stated:
“The time for commencement of an action under Civil Code section 1708.6 is
governed by Code of Civil Procedure section 340.15, which provides: ‘(a) In any civil
action for recovery of damages suffered as a result of domestic violence, the time for
commencement of the action shall be the later of the following:
“ ‘Within three years from the date of the last act of domestic violence by the
defendant against the plaintiff.
“ ‘(2) Within three years from the date the plaintiff discovers or reasonably should
have discovered that an injury or illness resulted from an act of domestic violence by the
defendant against the plaintiff.
“ ‘(B) As used in this section, “domestic violence” has the same meaning as
defined in Section 6211 of the Family Code.”
“Family Code section 6211 defines ‘domestic violence’ as ‘abuse perpetrated
against . . . [a] spouse or former spouse.’ (Fam. Code, § 6211, subd. (a).)
“ ‘Abuse’ is defined as any of the following: ‘(a) Intentionally or recklessly to
cause or attempt to cause bodily injury. [¶] (b) Sexual assault. [¶] (c) To place a person
in reasonable apprehension of imminent serious bodily injury to that person or to another.
[¶] (d) To engage in any behavior that has been or could be enjoined pursuant to Section
6320.’ (Fam. Code, § 6203.)” (Pugliese v. Superior Court, supra, 146 Cal.App.4th at
pp. 1448-1449, fn. omitted.)
8
Following that exposition of the law, the Court of Appeal concluded as follows:
“Although the assault and battery causes of action are barred by the applicable statute of
limitations, the complaint, taken as a whole, alleges a violation of Civil Code
section 1708.6. Michele claims that during the period June 1989 to April 2004, Dante
shoved, pushed, kicked, hit, slapped, shook, choked and sexually abused her. She also
alleges he pulled her hair, pinched and twisted her flesh, threatened to kill her, threatened
her with bodily harm, confined her in the family car while driving erratically and
drunkenly and infected her with sexually transmitted diseases. Clearly, Michele has
alleged that Dante intentionally or recklessly caused or attempted to cause her bodily
injury, sexually assaulted her, placed her in reasonable apprehension of imminent serious
bodily injury and engaged in behavior that could have been enjoined pursuant to Family
Code section 6320. We therefore conclude Michele has set forth a cognizable claim for
domestic violence.” (Pugliese v. Superior Court, supra, 146 Cal.App.4th at p. 1450.)
Likewise here: domestic violence expressly includes sexual assault, and Rinske’s
claim was thus properly before the jury.
B. Rick’s Factual Recitation Is Inadequate For a Substantial Evidence
Challenge
In a separate argument, Rick asserts a substantial evidence challenge to the jury’s
verdict (although he fails to identify the substantial evidence test as the applicable
standard of review). He contends that Rinske “failed to show the requisite elements of a
domestic violence claim,” because “there was absolutely no evidence that Defendant
intentionally or recklessly attempted to put his ex-wife in danger of bodily injury.”
Significantly for our purposes, an appellant challenging the sufficiency of the evidence to
support a judgment is required to state in the opening brief all evidence pertinent to that
point. If this is not done, the reviewing court may treat the issue as forfeited. (In re
Marriage of Fink (1979) 25 Cal.3d 877, 887; Foreman & Clark Corp. v. Fallon (1971)
3 Cal.3d 875, 881; Arechiga v. Dolores Press, Inc. (2011) 192 Cal.App.4th 567, 571-572;
In re Marriage of Steiner (2004) 117 Cal.App.4th 519, 530; Estate of Hilton (1996)
44 Cal.App.4th 890, 922; Cal. Rules of Court, rule 8.204(a)(2)(C) [appellant’s opening
9
brief must “[p]rovide a summary of the significant facts limited to matters in the record”];
Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2012)
§§ 8:70-8:71, p. 8-36.) Rick was thus required to set forth all material evidence in his
opening brief. This, he failed to do.
Despite that the presentation of evidence at trial consumed seven days and resulted
in a reporter’s transcript of over 1,300 pages, Rick’s factual statement in his opening brief
consists in its entirety of the following two paragraphs: “On or about March 3, 2010,
Rinske Bolander filed her suit for her original four claims. [Citation.] As noted above,
three of those claims: 1) spousal rape, 2) sexual buttery [sic], and [3)] intentional
infliction of emotional distress were voluntarily dismissed prior to trial leaving the one
and only remaining claim—domestic violence, pursuant to Cal. Civil Code
Section 1708.6. [Citation.] [¶] With the remaining claim, Plaintiff alleged four instances
of domestic violence, surrounding allegations that on two occasions, March 7, 2007 and
April 22, 2007, Defendant mixed the drug Ambien into a glass of wine that he served to
his wife, and subsequently engaged in sexual activity with her. Plaintiff’s theory was that
each instance of Defendant serving the wine mixed with Ambien was an instance of
domestic violence; and each subsequent sexual encounter was also an instance of
domestic violence, as defined by Section 1708.6. [Citation.] No other allegation of any
other incident of domestic violence was before the Court.”
The deficiencies of Rick’s iteration of the facts are obvious, and we easily
conclude he forfeited his substantial evidence challenge.
In attempting to persuade us otherwise, Rick claims that his abbreviated recitation
of facts was adequate because “the fundamental facts are not in dispute.” This assertion
is belied by the fact that the parties disputed whether the sexual intercourse was
consensual and whether Rinske suffered bodily injury as a result of it. Moreover, in
challenging a verdict as unsupported by substantial evidence, Rick was obligated to set
forth all material facts, not just disputed facts.
Rick also submits that the fact that his opening brief contained an adequate
rendition of the facts was “evidenced by the fact that [Rinske’s] Respondent’s Brief adds
10
no new facts that are material to the tort of domestic violence.” He claims that in her
own statement of facts, Rinske spent only one paragraph describing her injuries. This
completely disregards the three pages of facts detailing what she experienced after she
consumed the Ambien-laced wine, testimony that specifically related to the bodily injury
and apprehension of imminent serious bodily injury that she suffered.
Lastly, Rick submits that the law did not require him to set forth all material
evidence in a particular section, suggesting that all material facts are contained elsewhere
in his opening brief. It is true that peppered throughout Rick’s opening brief are
references to other evidence offered at trial, some to Rinske’s testimony and others to that
of her professional witnesses. Not only do many of these references lack citation to the
reporter’s transcript,6 but these occasional references are few—and certainly do not
provide a whole and complete summary of the evidence pertinent to Rinske’s domestic
violence claim. In short, Rick’s briefing manifests total disregard for settled principles
of appellate procedure. Such conduct is not to be condoned.
C. Substantial Evidence Supported the Jury’s Verdict
But even if we were to give Rick the benefit of the doubt and agree that he set
forth an adequate recitation of material facts—which we do not—his argument would
nevertheless fail because substantial evidence supported the jury’s verdict.
As noted above, a claim for domestic violence under section 1708.6 consists of the
infliction of injury on the victim resulting from abuse by a person having a relationship
with the victim. Section 1708.6 incorporates Penal Code section 13700’s definition of
“abuse,” which is “intentionally or recklessly causing or attempting to cause bodily
6
For example, in arguing that Rinske did not present evidence of bodily harm,
Rick states, “Plaintiff testified that she was allegedly traumatized as a result of the
alleged events of March 7 and April 22, 2007. Her therapist testified that the Plaintiff
continued to suffer emotionally from the alleged rape by Defendant that she claims she
endured. [Citation.] Plaintiff’s psychiatrist testified that Rinske Bolander suffered from
post traumatic stress syndrome caused by the betrayal and violation perpetuated by the
Defendant.” This paragraph is unsupported by any citation to the reporter’s transcript.
The only citation is to a page in the clerk’s transcript, which page is a page from Rinske’s
opposition to Rick’s motion for judgment notwithstanding the verdict.
11
injury, or placing another person in reasonable apprehension of imminent serious bodily
injury to himself or herself, or another.” Here, Rinske presented ample evidence to
support a conclusion that by incapacitating her with Ambien and then having sexual
intercourse with her without her consent, Rick intentionally or recklessly inflicted bodily
injury upon her or placed her in reasonable apprehension of imminent serious bodily
injury.
As previously detailed, Rinske testified that after the first time Rick drugged her,
she did not feel well. She was nauseous, light-headed, and dizzy. She could not speak or
move and she felt like she was under water, which she described as “terrifying.” Her
vision was impaired in that she could see directly in front of her but everything else was
“faded out.” She did not want to have sex with Rick but she was “frozen” and could not
stop him. She described it as “petrifying” because she did not know what was happening
to her body. The following morning, she lost her balance and fell down in the shower
because she “felt very disoriented like the room was spinning . . . .”
During the April 22 incident, Rinske described similar physical feelings, but also
detailed the sexual intercourse. According to Rinske’s testimony, Rick forced her to
perform oral sex on him, causing her to gag from his forceful thrusting. He then had
intercourse with her from the front and back, at one point forcing her head down onto the
ottoman and pulling her hair back tightly.
In addition to her own testimony, Rinske introduced testimony by her professional
witnesses who testified that as a result of the Ambien incidents, Rinske suffered from
PTSD.
Despite this evidence, Rick still insists that “There is no evidence that Rinske
Bolander was the victim of violence or that she suffered physical injury. There was no
evidence that she was placed in reasonable apprehension of imminent serious bodily
injury.” In light of the foregoing, we easily conclude to the contrary.
12
D. Rick Forfeited His Argument That He Was Prejudiced by Excessive
Testimony About Rape
In a third argument, Rick contends that he was prejudiced by improper references
to the word “rape” at trial. Once again, he notes that prior to trial Rinske dismissed her
spousal rape, sexual battery, and intentional infliction of emotional distress claims.
Despite this, she repeatedly offered testimony—either her own or that of her professional
witnesses—that he had nonconsensual sex with her, testimony that often referred to the
encounters as “rape.” This was done, Rick claims, to prejudice the jury against him,
despite the fact that any testimony regarding nonconsensual sex was, according to him,
irrelevant to Rinske’s domestic violence claim and despite the court’s pretrial ruling that
references to “rape” would not be permitted.
Rick cites multiple examples of the purportedly objectionable testimony. For one,
he quotes the following question posed to Rinske by her counsel: “You’ve never in your
past had any situation where, before March 7th, with the defendant or anybody else,
where you felt there was a date rape or you were drugged or that you were sexually
assaulted or that you had nonconsensual sex; you have no history of that, correct.”
Additionally, in a section of his opening brief entitled, “The Court allowed the
Plaintiff’s counsel to elicit comments from Rinske Bolander alleging she was raped,”
Rick quotes a passage from Rinske’s deposition testimony that he claims her counsel read
to the jury, as follows:
“Question: Is this the testimony you gave on that subject at your deposition, same
date-yes. I’m sorry. This is Thursday, July 22nd, 2010, at page 458—at page 23:
“ ‘Question: Okay. I mean—when you read it, did you think to yourself that
“This guy really loves me”?’
“ ‘Answer: I honestly think that he did love me. And why? Why would he
choose to do what he did? I mean, what husband does that? If you feel this way, why
would you drug me and rape me repeatedly? Why would you do that?’
“ ‘Question: When you read it, you felt the comments, the sentiments that he was
expressing in this letter were sincere. You felt that he really meant it?’
13
“ ‘Answer: In—yes, I do feel that he meant it. But I also, you know—they’re
words. And actions and words obviously I had been violated and humiliated and totally
betrayed by this person who wrote this, so it doesn’t make sense to me.’
“Was that honest testimony that you gave me?
“Answer: Yes.”
Rick also complains that Rinske’s professional witnesses were encouraged to offer
testimony that Rick raped Rinske. For example, he quotes testimony by Jan DiSanto, the
couple’s marital counselor who testified on Rinske’s behalf, in which she stated that it
“was a horrible betrayal [for Rinske] to then be drugged and raped by” Rick. He cites
Rinske’s cross-examination of Dr. Diane Everstine, who offered testimony about the
development of posttraumatic stress disorder in victims of nonconsensual sex. And he
cites Rinske’s cross-examination of Dr. John Barry concerning the effects of Ambien and
wine on a person. This evidence, Rick claims, all ran counter to the trial court’s
admonition that the attorneys not raise the rape allegations because they were not relevant
to the elements of Rinske’s section 1708.6 claim. Rick’s argument fails for four reasons.
First, significantly missing from any of the referenced testimony is a timely
objection by Rick’s counsel. It is well-established “that in order to raise the point of
erroneously admitted evidence on appeal, there must be a showing that a timely objection
had been made at trial directing the attention of the trial court to the particular evidence
sought to be excluded.” (Dugar v. Happy Tiger Records, Inc. (1974) 41 Cal.App.3d 811,
817; accord, Stenseth v. Wells Fargo Bank (1995) 41 Cal.App.4th 457, 462 [“[I]n order to
raise the issue of the admissibility of evidence, a party must make a timely objection on a
specific ground.”]; People v. Smith (1986) 180 Cal.App.3d 72, 79 [“An appellate court is
precluded from reviewing questions concerning the admissibility of evidence for the first
time on appeal.”].) This rule finds support in Evidence Code section 353, which
provides, in pertinent part: “A verdict or finding shall not be set aside, nor shall the
judgment or decision based thereon be reversed, by reason of the erroneous admission of
evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or
to strike the evidence that was timely made and so stated as to make clear the specific
14
ground of the objection or motion. . . .” Here, Rick identifies no timely objection or
motion to strike, nor did our review of the record reveal any. He thus failed to preserve
this claim for appellate review.
In reply, Rick suggests that the trial court exempted his counsel from the universal
obligation of objecting to improper evidence at the time it is offered. As he explains it, at
a pretrial conference on motions in limine, Rick’s counsel objected to witnesses using the
word “rape.” According to Rick, “the Court explicitly stated that there would be, in
essence, an ongoing objection to any inflammatory language. It was further stated that an
objection to each instance would not be required.” Rick’s interpretation of the actual
exchange is fanciful at best.
At a pretrial conference on June 30, 2011, the court ruled on the written motions in
limine, after which counsel for Rick advised that he had two additional motions. In the
first, he sought “to preclude plaintiffs’ counsel in questioning a witness in argument and
opening statement to describe the conduct that is now at issue as a rape,” complaining
“that would be terribly unfair because they’ve dismissed the rape cause of action.” The
following colloquy ensued:
“THE COURT: I think rape calls for a legal conclusion. Sustained. I wouldn’t
allow that.
“MR. SMITH [RICK’S COUNSEL]: Right. Now, I understand, your Honor, just
in that regard, that there’ll be testimony from witnesses that we’ve learned that the word
was used. And, of course, that’s legitimate, fair game. But counsel may not—and I think
you’ve already ruled and I understand that. But if a witness is talking about a prior
statement in which the words were used, I mean, that’s fine. They can talk about it as
long as it wasn’t some opinion of theirs or conclusion of theirs, but thank you for the
ruling in that regard. [¶] . . . [¶]
“Yes. And these comments—included in that, these comments about using a penis
as a weapon, which is an acronym for rape. Not an acronym, I mean a—it’s basically the
same thing. None of that hysterical kind of commentary should occur in this trial
pursuant to the Court’s ruling.
15
“THE COURT: Well, there’s always argument as you know, Mr. Smith, and we
get to sometimes argue our cases and words are used to define instruments of violence.
And I’m not going to preclude people in that regard, but certainly when we do our
opening statements and talk about what the evidence will show and when we interrogate
witnesses. . . and we question witnesses, legal terms, they call for legal conclusions and
would not be appropriate. Questions like rape—[¶] . . . [¶] obviously are legal
conclusions and not factual issues. So I understand that.”
The issue was again touched upon the following day when the court considered
Rick’s motion to preclude Rinske’s counsel from referring to Ambien as a “date rape like
drug.” This exchange ensued:
“THE COURT: I’ve been doing criminal law for over 20 years, I’ve never heard
of anyone dropping an Ambien in someone’s cocktail as a date rape drug. There are
other drugs, but I’m surprised at that one. I mean, we’ll see what the experts have to say,
but you know, again, words are important. You can explain what someone does. We
don’t have legal conclusions nor do we have, you know, words that are particularly
inflammatory. You know? I think that’s just how we conduct business.
“We don’t call a murderer a murderer until he’s convicted of a murder. We don’t
call a rapist a rapist until he is convicted of a rape. That’s how we proceed.
“Date rape-like drug sort of creates connotations that have no business in a court
of law. It is what it is. And, thus, it is Ambien and if it is allegedly dropped into
someone’s drink and then what happens thereafter is what we’re talking about here, we
don’t need to create monikers to somehow inflame a jury. That’s the only purpose for
this. So the motion is granted.
“MR. EMANUEL [RINSKE’S COUNSEL]: I think the Court made its ruling
yesterday that counsel is not to use the word ‘rape.’ I have no intention of doing so, but I
can, again, advise the Court that the experts on both sides have cited literature and have
used this language because Ambien, like Rohypnol, which is often referred to as
‘roofies,’ is basically in the same classification of controlled substance. So I think we’re
16
just in a situation where a clinical phrase might be different than a legal one. I know not
to use the term.
“THE COURT: And the question is was it done? And was it done without
consent? And what are the damages? I mean, those are the simple aspects of the case.
So, you know, I admonish both sides from—and I will sui sponte preclude you from
going into undue inflammatory remarks. I won’t need an objection and that goes for both
sides. If both sides in any way get out of control during the trial that I view of being over
the top, so to speak, you know, approaching witnesses without permission, you know,
becoming a little too caustic with witnesses, you will be admonished. And these are the
kinds of issues as to that. So that’s granted. I see that as quite appropriate.”
Neither of the foregoing exchanges can reasonably be construed as granting Rick’s
counsel a wholesale exemption from the obligation to timely object to evidence that he
considered improper. This conclusion is underscored by the court’s minutes of the
June 30 hearing: “Defense counsel moves the Court for an order precluding Plaintiff’s
counsel from questioning witnesses about a ‘rape’. The Court states that the term ‘rape’
would be precluded and the Court would sustain the Defendant’s objection if that term is
used.” (Italics added.) And, in fact, the court even admonished Rick’s counsel during
trial that certain evidence came in because counsel did not object to it: “The problem I
have is I can’t sustain my own objections on a regular basis. You allowed this. You
didn’t object to it, and perhaps you should have . . . .” Counsel was unquestionably on
notice of his obligation to object at the time Rinske’s counsel introduced what he
considered to be improper evidence.
In further disputing that he forfeited this argument by failing to timely object, Rick
also argues that forfeiture does not result when the improper admission of evidence
results in a miscarriage of justice such that the judgment should be set aside. Rick’s cited
authority does not support a conclusion that a miscarriage of justice occurred here.
Second, Rick’s argument that the jury improperly heard testimony about rape fails
because his counsel acknowledged that, in certain contexts, such testimony was
17
“legitimate, fair game.” Despite this concession, Rick makes no effort here to advise
when such testimony was improper and when it was “legitimate, fair game.”
Third, Rick has waived this argument by introducing evidence concerning rape
himself. As noted above, Rick complains that Rinske’s counsel read a passage of her
deposition testimony in which Rinske wondered why Rick would drug and rape her if he
loved her. Quite shockingly, while Rick accuses Rinske’s counsel of improperly putting
this evidence before the jury, this testimony was in fact introduced by Rick’s own counsel
during his cross-examination of Rinske. We hope this false accusation resulted from an
innocent error by Rick’s appellate counsel, rather than a deliberate attempt to mislead this
Court.7 But, regardless, the fact remains that Rick’s counsel put this evidence before the
jury. He cannot now be heard to complain about it.
Lastly, we note that an appellant arguing on appeal that the jury heard improper
evidence must not only show that the evidence should not have been admitted, but also
that he or she was prejudiced by the evidence. Rick does not do so.
E. Rick Forfeited His Argument That the Trial Court Erred In Failing to
Give a Limiting Instruction Regarding Rape Testimony
In a corollary to the above argument, Rick complains that once the improper
testimony concerning rape came in, the trial court should have instructed the jury that
such testimony “could not properly be considered, as [it did] not relate to any statutory
element” of a domestic violence claim. He claims that such testimony, which only
related to claims that had been dismissed, “obfuscated matters” and likely misled the
jury. As held above, Rick forfeited any claimed evidentiary error by failing to object to
the testimony. He cannot now circumvent that error by framing it as an instructional
error. More significantly, Rick’s argument ignores the elephant in the room: he never
requested such an instruction.
It is well established that “ ‘ “ ‘In a civil case, each of the parties must propose
complete and comprehensive instructions in accordance with his [or her] theory of the
7
We note that Rick’s reply brief is devoid of any acknowledgment of this
wrongful accusation.
18
litigation; if the parties do not do so, the court has no duty to instruct on its own
motion.’ ” ’ ” (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1130-1131;
Transport Ins. Co. v. TIG Ins. Co. (2012) 202 Cal.App.4th 984, 1008; Null v. City of Los
Angeles (1988) 206 Cal.App.3d 1528, 1534-1535; Eisenberg et al., Cal. Practice Guide:
Civil Appeals and Writs, supra, §§ 8:266, p. 8-170.)
Rick seeks to avoid application of this rule by suggesting that the court had an
affirmative duty to properly instruct the jury even in the absence of a specific request.
This principle, however, applies only in criminal cases, as illustrated by the fact that Rick
relies on criminal cases to support his argument. (See, e.g., People v. Martin (2000)
78 Cal.App.4th 1107, 1111; People v. Gerber (2011) 196 Cal.App.4th 368, 390.)
In his rely brief, faced with Rinske’s response pointing out that he was advocating
a rule applicable only in criminal cases, Rick seeks support from our recent opinion in
Veronese v. Lucasfilm, Ltd. (2012) 212 Cal.App.4th 1 (Veronese), claiming it “addressed
the question of whether the failure of a party to request a particular jury instruction
necessarily waives the ability to raise that issue on appeal.” According to Rick, we held
that “While such failure normally would create a barrier in the appellate court, there is an
exception when the trial court fails to properly instruct on the material issues and legal
principles necessary for the jurors to understand and therefore follow the applicable law.”
While there may exist such an exception, it does not apply here.
In Veronese, supra, 212 Cal.App.4th at p. 28, we considered, as pertinent here, the
court’s failure to instruct the jury on plaintiff’s claim for failure to prevent discrimination,
a claim on which the jury returned a verdict for plaintiff despite the lack of an instruction
on that cause of action. Apropos to this issue, we stated: “The trial court must instruct
on the law applicable to the facts developed by the evidence and every reasonable theory
that the evidence supports. [Citations.] As the Supreme Court has recognized, ‘there
ordinarily is no duty to instruct in the absence of a specific request by a party; the
exception is a complete failure to instruct on material issues and controlling legal
principles which may amount to reversible error. [Citations.]’ [Citation.].) [¶] Witkin
distills the rule this way: ‘[I]t is the duty of the court to see that jurors are guided on
19
controlling legal principles, and the complete failure to instruct properly on a basic issue
may be reversible error. [Citations.].’ (7 Witkin, Cal. Procedure (5th ed. 2008) Trial,
§ 261, pp. 315–316.).” We then concluded that under the facts of that case, the absence
of an instruction on failure to prevent discrimination was indeed error. (Veronese, supra,
212 Cal.App.4th at pp. 28-29.) This case, however, is different.
First, and most significantly, in Veronese, the court was prepared to give the
instruction at issue but was advised—erroneously—that it had already read it. (Veronese,
supra, 212 Cal.App.4th at p. 28.) Here, Rick never requested an instruction regarding the
rape testimony. Moreover, the instruction omitted in Veronese went to the very elements
of the cause of action. Here, as Rick concedes, the jury was properly instructed on the
elements of a domestic violence claim. We thus cannot see how this case falls within an
exception where there “is a complete failure to instruct on material issues and controlling
legal principles . . . .” (Ibid.)
But, once again, even if we were to overlook Rick’s forfeiture of this argument
and were to agree with him that there had in fact been error, we would still reject his
argument. This is so because reversal for instructional error is only warranted where the
error resulted in a miscarriage of justice. (Soule v. General Motors Corp. (1994)
8 Cal.4th 548, 580 (Soule).) In other words, to merit reversal Rick would have to
demonstrate that, absent the alleged error, it is “reasonably probable” that the jury would
have reached a different result. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800.)
This showing requires an analysis of several factors, which the court in Soule identified
as including the state of the evidence, the effect of other instructions, the effect of
counsel’s arguments, and any indication by the jury itself that it was misled. (Soule,
supra, 8 Cal.4th at pp. 580-581.)
While repeatedly asserting that he suffered “prejudice”—indeed, “extreme
prejudice”—Rick makes no effort in his opening brief to actually demonstrate how he
was prejudiced, to address the factors outlined in Soule. By failing to present this
argument in his opening brief, it, too, has been forfeited.
20
Lastly, we note that Rick does not even suggest how the jury should have been
instructed. Since he never requested a limiting instruction, he asks us to rule on this issue
in a vacuum. We decline to do so.
F. Rick Forfeited His Argument That the Trial Court Erred In Allowing
Testimony Regarding the PTSD Rinske Suffered
Rick also suggests that evidence regarding posttraumatic stress disorder was
irrelevant to Rinske’s domestic violence claim because PTSD does not constitute bodily
injury, and he complains that the trial court “did nothing to stop” Rinske from offering
testimony regarding the disorder. He further complains that the trial court failed to
“clarify with the jury” that “allegations of PTSD cannot satisfy the bodily injury required
under Section 1708.6.” Again—and without deciding whether the evidence was properly
admitted—Rick neither objected to the testimony nor requested a limiting instruction, so
he cannot now be heard to complain.
In sum, we reject all of Rick’s arguments and affirm the judgment. We thus turn
to the issues presented by Rinske’s appeal, which arose following posttrial motions.
DISCUSSION—RINSKE’S APPEAL
A. Rinske’s Memorandum of Costs
On August 19, 2011, Rinske filed a memorandum of costs seeking $155,622. The
costs were itemized as follows: $555 for filing and motion fees; $5,941 for jury fees;
$23,962 for depositions; $454 for service of process; $55 for attachment expenses;
$86,297 for expert witness fees; $155 for blowups of trial exhibits; $2,000 for court
reporter fees; and $36,203 for “other.”
Attachments 13 and 13A detailed the expenses comprising the “other” category.
They included $1,574.72 for “records obtained through subpoena & authorizations”;
$3,763.53 for copies of videotaped depositions; $340 for family law court transcripts;
$36.93 for two books by defense expert Diana Everstine, M.D. purchased from
Amazon.com; $955.29 for mail and messenger deliveries; $3,025.50 for Gregg Oglesby
Investigations, Private Investigation Services; $1,441.40 for travel expenses for witness
Eileen Blocki; $24,790.85 for National Jury Project/West; and $275 for a jury verdict
21
search. Aside from the expenditures for records obtained through subpoenas, copies, and
mail and messenger deliveries, Rinske sought these “other” costs pursuant to section
1708.6.
On September 1, 2011, Rick filed a motion to tax costs. Arguing that the vast
majority of the costs Rinske sought to recover were not reimbursable, Rick requested that
the court tax $142,307 of the $155,622 she was seeking, specifically challenging five
categories of costs.
As to deposition expenses, Rick argued that $17,280—Rinske’s expenditure for
Rick’s and her depositions—should be reduced by 75 percent.8 He reasoned that because
Rinske dismissed three of her four causes of action, only prevailing on her domestic
violence claim, she should only recover 25 percent of the deposition costs, or $4,320.
Rick argued that all of the $86,297 requested for expert witness fees should be
disallowed. He noted that Code of Civil Procedure section 1033.5 provides for the
recovery of expert witness fees only when the expert was “ordered by the court” or when
the fees are expressly provided for by law. None of Rinske’s experts was court ordered.
Section 1708.6 authorizes “general damages, special damages, and punitive damages,” as
well as “equitable relief, an injunction, costs, and any other relief that the court deems
proper, including reasonable attorney’s fees.” It does not, Rick noted, provide for expert
witness fees.
Of the $454 Rinske sought for service of process, Rick sought a reduction of $174,
the amount Rinske incurred to serve three witnesses who were neither deposed nor called
as witnesses at trial. Rick also argued that Rinske’s request for $2,000 for court reporter
fees should be disallowed because there was no showing that the trial court reporter was
necessary to the litigation.
8
While Rinske requested $23,962 for depositions, Rick sought to tax only $17,280
of that. Apparently, he did not dispute the costs she incurred for the depositions of Glenn
Perkins, Charlene Perkins, Lana Norris, Jan DiSanto, Sheila Krystal, Judith Stewart,
Beverly Joyce, John Barry, Peter Davie, James Missett, Diana Everstine, David Spiegel,
M.D., and David Young, M.D., which costs totaled $6,682.
22
Lastly, Rick sought to tax Rinske’s claim for “other” expenses, seeking a
reduction of $29,257.75 of the $36,203 requested. He argued that most of the expenses
were not authorized as recoverable expenses and many were, in fact, expressly
disallowed by Code of Civil Procedure section 1033.5, subdivision (b). The largest
portion of this category was jury consultant fees paid to National Jury Project/West and
investigative expenses paid to Gregg Oglesby Investigations ($24,790.85 and $3,025.50,
respectively), both of which Code of Civil Procedure section 1033.5, subdivision (b)(2),
exclude except when expressly authorized by law. Rick also argued that $340 for family
law court transcripts should be taxed because they were not court ordered, and that $275
for a jury verdict search and $1,441.40 for Eileen Blocki’s travel expenses were also
noncompensable.
On September 19, 2011, Rinske filed opposition to Rick’s motion to tax costs.
She disputed Rick’s claims that certain of her requested costs were unauthorized,
contending that costs not specifically provided for under Code of Civil Procedure
section 1033.5 were authorized by section 1708.6, subdivision (c), which allows for “any
other relief that the court deems proper.” She also disputed that the costs should be
apportioned, arguing that the facts supporting the successful domestic violence claim
were the same as those supporting the dismissed causes of action.
Rinske then sought to justify each requested expenditure. She claimed the fees for
service of process were necessarily incurred because the witnesses were evading service,
and the court reporter fees should be allowed because Rinske was obligated to pay the
court reporter at trial.
As to the expert witness fees, Rinske argued that section 1708.6 authorized the
court to award any other relief that it deemed proper. Rinske was required to retain
experts to refute the evidence presented by Rick’s experts, and reimbursement for those
fees was necessary to make her whole, as contemplated by the statute. And concerning
the experts who did not testify, they nevertheless provided expert advice.
Concerning item 13—additional expenses—Rinske argued the necessity of each
expense: the jury consultant was “critical to the case,” the investigator was necessary to
23
interview witnesses who may have had relevant information about Rick, and Eileen
Blockee was an out-of-state witness who may not have been able to testify had her airfare
not been covered.
B. Rinske’s Motion for Attorney’s Fees
Meanwhile, on September 8, 2011, Rinske filed a “Motion for Attorney’s Fees and
Costs Not Recoverable under CCP §1033.5.” The motion was based on section 1708.6,
subdivision (c), which provides as follows: “The court, in an action pursuant to this
section, may grant to a prevailing plaintiff equitable relief, an injunction, costs, and any
other relief that the court deems proper, including reasonable attorney’s fees.”
Rinske requested an award of “reasonable attorney fees of $455,600 plus an
enhancement multiplier of 1.5 for attorney time,” as well as an additional $10,000 for the
preparation of the fee motion. According to Rinske, under discretionary fee shifting
statutes such as section 1708, subdivision (c), “the prevailing plaintiffs in public interest
litigation are ordinarily entitled to reasonable attorneys fees, and fees may be denied only
when ‘special circumstances would render an award unjust.’ ” She argued that this
standard should be applied here, because she “pursued her claim under Civil Code
section 1708.6 to vindicate a very important statutory right to be seek [sic] redress from
the injuries suffered at the hands of her former husband in violation of the state’s
domestic violence laws.” Further, Rinske submitted that awarding her attorney’s fees
would serve the legislative purposes of section 1708.6 which, according to the statute
itself, are “to enhance the civil remedies available to victims of domestic violence in
order to underscore society’s condemnation of these acts, to ensure complete recovery to
the victims, and to impose significant financial consequences upon perpetrators.”
Rinske’s motion also argued that she was entitled to her costs for experts and
investigation. Conceding that Code of Civil Procedure section 1033.5, subdivision (b)(1)
expressly excludes recovery of “ ‘[f]ees of experts not ordered by the court’ ‘except when
expressly authorized by law,’ ” Rinske submitted section 1708.6 authorized them for
successful domestic violence plaintiffs because, as noted, it was designed to enhance the
remedies available to victims of domestic violence and to ensure their complete recovery.
24
On September 19, 2011, Rick filed opposition to Rinske’s fee motion. He denied
that the litigation involved the enforcement of an important right or that it conferred a
significant benefit on the general public or a large class of individuals. Alternatively,
Rick argued that there were special circumstances rendering a fee award unjust.
Specifically, he described Rinske’s conduct in the litigation as “outrageous.” Her
complaint, he said, accused him of 15 years of abuse, charges he had to defend himself
against, only to have her dismiss three of her claims on the eve of trial, leaving only a
single cause of action for domestic violence stemming from the two, as he put it,
“Ambien incidents.” Further, he claimed he repeatedly attempted to settle both Rinske’s
civil case and their marital dissolution action, but Rinske refused, adhering to manifestly
unreasonable settlement demands far exceeding what she was ultimately awarded by the
jury.
If the court was inclined to award fees, however, Rick urged the court to apportion
them. He reasoned that Rinske’s attorneys invoiced all the time they spent litigating the
case, while Rinske only prevailed on one of her four claims. Rinske’s motion failed to
make any attempt to apportion the fees which, Rick contended, justified denial of her
request in its entirety. At most, she should be awarded 25 percent of the requested fees.
Rick also submitted that Rinske’s lodestar calculation was unreasonable. She
requested hourly rates of $400 and $500 for the two attorneys who represented her, which
Rick argued should be reduced to $100 and $250 per hour, the rates his attorneys charged
him. Further, Rinske was not entitled to an enhancement because none of the factors
warranting a multiplier existed.
Lastly, Rick disputed Rinske’s entitlement to expert fees. He noted that she relied
on a case involving the award of expert fees under section 1794, which provides for the
recovery of “costs and expenses.” Section 1708.6 only provides for the recovery of
“costs.” Additionally, the amount of her request was unreasonable, since it sought fees
for experts who never testified.
On September 23, 2011, Rinske filed a reply in support of her fee motion. In
short, she argued that Rick failed to demonstrate the existence of special circumstances
25
justifying denial of her fee request; there was no basis for apportioning fees; and her
lodestar calculation and enhancement request were reasonable.
C. Hearing on Rinske’s Fee Motion and Rick’s Motions to Tax Costs
On September 30, 2011, Rinske’s motion for attorney’s fees and Rick’s motions to
tax costs came on for hearing, as did Rick’s motion for new trial.9 Rick’s counsel argued
first and began by arguing—yet again—that Rinske’s “put one over on the jury,”
convincing them to find for her on her domestic violence claim when she had really
alleged sexual battery. In light of that, Rick urged the court to “have the courage to say
no” and grant his motion for a new trial.
Turning to the fee motion, Rick’s counsel disputed Rinske’s version of settlement
discussions that portrayed her as making reasonable settlement demands while he
responded with only unreasonable offers. In fact, according to Rick’s counsel, Rinske
demanded nine million dollars, ultimately receiving less than five percent of that from the
jury. And, counsel argued, Rick had offered her $151,000 plus her attorney’s fees, which
was equivalent to what Rinske claimed she would have settled for.
After Rick’s counsel made a few additional arguments directed exclusively at the
motion for new trial, argument shifted to Rinske’s counsel. He began by disputing Rick’s
version of the settlement negotiations, contending that Rick’s offer of $151,000 was
nothing more than a nuisance value offer, especially considering the horrific events to
which he subjected Rinske.
The court interrupted Rinske’s counsel to say this: “You make these arguments
and we’re heard these before, and as I said numerous times, someone failed to pursue the
case within the statute of limitations to make this a sexual battery or other crime under
the Civil Code, but instead waited until that time had passed to file the charges or the
allegations and took this case and argued it was a domestic violence case, which was, as I
said before, a close call under the law . . . . [¶] . . . [¶] One of the problems that continues
9
Rick’s motion for new trial also contained a request for remittitur. It is irrelevant
to the issues before it, and we thus omit discussion of it.
26
on this case that bothers me is the reality that, you know, you could be standing before
me with four causes of action and make your arguments like a shining knight saying this
was what was done and this is what needs to be taken care of; however, you’re not.
Three causes of action went down at your own motion to dismiss and you were left
basically arguing a domestic violence case with facts such as these, which puts you in a
much more difficult position. You wouldn’t have had such a difficult position had the
case been filed just weeks before. [¶] And so with that said, the righteous indignation
may well be there for you to argue in terms of people to hear, but in terms of the law and
the requirements under the law, we tried this as a domestic violence case and that was a
difficult process I thought. Candidly a case that was a close call when [Rick] brought his
motion for a directed verdict.”
Rinske’s counsel briefly disputed the court’s characterization of the case, and the
court continued: “What I’m saying is the law and you tried this as a domestic violence
case, not a sexual battery case. And regardless of what the facts are, it must fly within
the context of the cause of action that is viable. And there was only one viable cause of
action. And that’s not because of—well, that’s because of not pursuing the case prior to
the statute of limitations. And so when one sits on their hands, so to speak, and not
proceed, that leads [sic] you with fewer causes of action. The facts don’t change, but the
remedies do. And that’s one of the issues that I grapple with in this case. [¶] I’m not
saying that I’m in any way siding with one side or another or feel that these facts are not
egregious or any of that, what I’m saying is because of someone not pursuing this when
this was a viable case, you’re down to a domestic violence case. And this is what I said
from the beginning, you’re down to a domestic violence case that we can, you know,
raise the flag and use the language of . . . rape and words such as that, but the problem
was, for you, was this was a domestic violence case, it wasn’t a sexual battery case. It
was the emotional infliction of distress, I mean, infliction of emotional distress. It was
one cause out of four that finally made it to the jury. And the jury did reach a verdict and
they reach a rather high verdict as I’ve already indicated, but that being said, now you
27
need to address the issues . . . why I should grant attorney’s fees and why I shouldn’t
grant the motion to tax costs?”
After Rinske’s counsel briefly responded, the court turned to section 1708.6,
observing that under the statute, it was not compelled to award attorney’s fees and that its
“issue” was whether Rinske would get any fees at all: “I thought this case was
over-litigated. I thought it was over-litigated by both sides. [¶] I like what one juror had
to say. She said—this was (Juror No. 12) who said, you know, ‘The fact that the parties
involved wanted to air their laundry is their business.’ It was not a case that truly, I think,
satisfied any governmental need or necessity to be tried. It was a particularly—it was
really just a family law case gone bad with two people that don’t like each other and
continue to handle this in family law. [¶] There were tactics in the trial that I thought
were interesting. . . . [¶] I mean, there were a lot of issues in this by both sides. There
were some antics that went on; I didn’t like them. But that being said, now I have to
decide this issue of attorney’s fees. So tell me why I should award attorney’s fees.”
As Rinske’s counsel began to reply with an acknowledgment that fees were
discretionary, the court interrupted, stating, “You agree I have discretion; I don’t have to
award a nickel.” Rinske’s counsel responded affirmatively, and the court continued:
“You have to understand, we deal with domestic violence everyday in this court. And I
mean domestic violence where people are being beaten, struck, hit, stabbed, maimed,
gouged, and we put those poor people into shelters to protect them from their aggressors.
These poor victims, we take care of them and we counsel them, we find them places that
they can go rather than have them stay in their cars overnight and hide from their
aggressors. All right? Those are domestic violence cases of which you speak. This is
slightly different.”
Rinske’s counsel disagreed, contending that what Rinske suffered at Rick’s hands
“is up there with any of them.” The court countered, “I’ll just say this one more time:
This barely made it as a domestic violence case. I almost granted the directed verdict.
Frankly, you could have tried it as a sexual battery. You could have tried it under those
three causes of action. It barely made it under the wire. The fact that the jury came back
28
with a verdict that they did shows the jury, perhaps, you know, broadened the scope and
was willing to look at the angles that you were presenting. All right? There were things
that were not presented as I’ve already articulated that I think would have changed some
of their minds.”
Rinske’s counsel responded that, given the court’s denial of Rick’s motions,
Rinske had a right to try her case to a jury. Rick responded by turning it into a dog fight,
so she was forced to zealously litigate it.
Once again, the court expressed its opinion that “this was barely a domestic
violence case under the law. It just made it. Okay? And, thus, that’s something that one
has to consider, one has to consider the aspects of the defense’s arguments that I should,
at least, reduce it by three quarters. Also, I have to look at the type of case this was, how
it was handled. I thought it was over-litigated by both sides. Yes, this was an incredible
fight between two people. And this was demonstrated by the fact that I have jurors that
call it ‘airing their dirty laundry.’ People did not want to hear this. People felt beyond
[sic] that which belongs in a court room. It was something of dirty laundry that we don’t
regularly see in a court of law other than, perhaps, the Family Law Division.”10
With that, the court denied Rick’s request for new trial and Rinske’s motion for
attorney’s fees, and took Rick’s motion to tax costs under submission.
D. Orders Denying Fee Motion and Granting in Part the Motion to Tax
Costs
On December 12, 2011, the trial court entered its order on Rick’s motion to tax
costs, granting it in part as follows: service of process fees of $174 (item 5); expert
witness fees of $86,297 (item 8); court reporter fees of $2,000 (item 12); and additional
expenses in the amount of $29,532.75 (item 13), for a total amount taxed of $118,003.75.
The court denied Rick’s request to tax deposition costs of $17,280 (item 4).
10
We take exception with the trial court’s representation that “jurors” considered
the case to be about Rick and Rinske “airing their dirty laundry.” The court was merely
echoing the opinion of one dissenting juror, an opinion clearly not shared by the 10 jurors
who returned a verdict in Rinske’s favor and awarded her $405,000.
29
On December 22, 2011, the court entered an amended judgment awarding Rinske
$17,270 in costs.
On January 11, 2012, the trial court entered an order denying Rinske’s motion for
attorney’s fees. The two-page order stated that “[t]he Court determined that it has sole
discretion under Civil Code section 1708.6 whether to award attorney’s fees to plaintiff
and, if so, to what extent. In its sole discretion, the court declines to award any attorneys’
fees to plaintiff.”
Rinske appealed from the order denying her motion for attorney’s fees, the order
granting in part Rick’s motion to tax costs, and the amended judgment entered on
December 22, 2011.
E. Standard of Review
Section 1708.6, subdivision (c) provides: “The court, in an action pursuant to this
section, may grant to a prevailing plaintiff equitable relief, an injunction, costs, and any
other relief that the court deems proper, including reasonable attorney’s fees.” A
permissive fee provision (i.e., the court “may” awards fees) such as this grants the trial
court the discretion to award fees to the prevailing party. (Weil & Brown, Cal. Practice
Guide: Civil Procedure Before Trial (The Rutter Group 2013) ¶ 1:287, p. 1-50.14.)
Where the trial court has discretion to award attorney’s fees, we will not disturb the trial
court’s decision absent an abuse of that discretion. (Carpenter & Zuckerman, LLP v.
Cohen (2011) 195 Cal.App.4th 373, 378; Moran v. Oso Valley Greenbelt Assn. (2001)
92 Cal.App.4th 156, 160.) “We will overturn such an order only if, considering all of the
evidence viewed most favorably in its support and indulging all reasonable inferences in
its favor, no judge could reasonably make the order.” (In re Marriage of Corona (2009)
172 Cal.App.4th 1205, 1225–1226.)
Despite the above standard, Rinske urges that we review the trial court’s order de
novo, which she contends is the applicable standard of review here because the trial court
misconstrued the domestic violence statute and thus failed to apply the proper legal
standard. As she explains it, while a trial court typically has discretion to deny an award
of statutory attorney’s fees, the court here only had discretion to deny her fee request if
30
Rick demonstrated that special circumstances rendered a fee award unjust. This standard
derives from Newman v. Piggie Park Enterprises, Inc. (1968) 390 U.S. 400, 402-403,
where the court considered a fee award under Title II of the Civil Rights Act of 1964,
42 United States Code section 2000a-3(b). The California Supreme Court later adopted
the same standard in Serrano v. Unruh (1982) 32 Cal.3d 621, a case involving an equal
protection challenge and a claim for attorney’s fees under California’s private attorney
general statute (Code Civ. Proc., § 1021.5). It has subsequently been extended to cases
involving certain other statutory fees provisions, including claims under the Brown Act
(Gov. Code, § 54950 et seq.) (Los Angeles Times Communications LLC v. Los Angeles
County Board of Supervisors (2003) 112 Cal.App.4th 1313, 1327; Common Cause v.
Stirling (1981) 119 Cal.App.3d 658); the Political Reform Act of 1974 (Gov. Code,
§ 81000 et seq.) (Thirteen Committee v. Weinreb (1985) 168 Cal.App.3d 528); and state
and federal antidiscrimination laws (Christianburg Garment Co. v. EEOC (1978)
434 U.S. 412, 416 [action under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
2000e et seq.]; Chavez v. City of Los Angeles (2010) 47 Cal.4th 970 [fee claim made
pursuant to the Fair Employment and Housing Act (FEHA); Flannery v. Prentice (2001)
26 Cal.4th 572, 584 [same]; Young v. Exxon Mobil Corp. (2008) 168 Cal.App.4th 1467,
1474 [same]).
Conceding that there are no cases applying this standard to a domestic violence
claim under section 1708.6, Rinske urges us to adopt it here because, like the situations
above, domestic violence claims serve an important public interest and advance a
significant public policy. She argues that they are similar to employment discrimination
cases brought under FEHA because “[b]oth are civil rights legislation enacted not just to
provide remedies for individuals but to address significant public problems.” Further, she
argues that “[w]ithout such an award, the overwhelming majority of domestic violence
victims will effectively be denied access to civil remedies, especially where the victim
lacks financial resources,” and the legislative intent to fully compensate victims of
domestic violence will be thwarted. By prevailing on her domestic violence claim
against Rick, she vindicated an important statutory right and furthered the public interest.
31
We recognize the severity of the domestic violence Rinske was subjected to by
Rick. As to that, we wholeheartedly disagree with the trial court’s characterization of the
case as “not a serious matter.” And as detailed above, we reject Rick’s contention—and
apparently the view of the trial court—that Rinske alleged a cause of action for sexual
battery but not domestic violence. But be that as it may, Rinske’s lawsuit against Rick
did not serve a public purpose, nor did it advance a significant public interest. It was a
private dispute between two individuals, a dispute in which Rinske was vindicated by a
sizable jury verdict. We therefore decline Rinske’s invitation to extend the standard
reserved for public interest litigation to her case.
F. Due to a Misunderstanding of the Applicable Law, the Trial Court
Abused Its Discretion In Ruling On Rinske’s Motion for Attorney’s Fees
As quoted in detail above, at the hearing the trial court essentially offered only one
reason for denying Rinske’s fee request: it doubted that Rinske’s allegations that Rick
drugged and raped her constituted domestic violence, repeatedly stating that her evidence
was more suited for a sexual battery claim. But in rejecting Rick’s challenge to the jury’s
verdict, ante, we held, consistent with Pugliese v. Superior Court, supra,
146 Cal.App.4th 1444, 1448-1449, that sexual battery is within the definition of domestic
violence. Thus, the trial court’s denial of Rinske’s request for fees was based on a
misunderstanding of law.11
Where the trial court misunderstands the applicable law, its decision falls outside
the scope of discretion. As the court in Horsford v. Board of Trustees of California State
Univ. (2005) 132 Cal.App.4th 359, 393, explained: “It is often said that a trial court’s
exercise of discretion will be reversed only if its decision is ‘beyond the bounds of
reason.’ [Citation.] This description of the standard is complete, however, only if
‘beyond the bounds of reason’ is understood as something in addition to simply
11
We struggle to understand how the court could rely on its belief that Rinske did
not allege a claim for domestic violence to deny her fee request while at the same time
denying Rick’s motion for new trial, as well as his prior motions for a directed verdict
and for judgment notwithstanding the verdict, all of which were grounded in his theory
that Rinske alleged a claim for sexual battery but not domestic violence.
32
‘irrational’ or ‘illogical.’ While an irrational decision would usually constitute an abuse
of discretion, the legal standard of review encompasses more than that: ‘The scope of
discretion always resides in the particular law being applied, i.e., in the “legal principles
governing the subject of [the] action . . . .’ Action that transgresses the confines of the
applicable principles of law is outside the scope of discretion and we call such action an
“abuse” of discretion.’ [Citation.] For example, a court could be mistaken about the
scope of its discretion and the mistake could be entirely ‘reasonable’—that is, it adopts a
position about which reasonable judges could differ. But a reasoned decision based on
the reasonable view of the scope of discretion is still an abuse of judicial discretion when
it starts from a mistaken premise, even though nothing about the exercise of discretion is,
in ordinary-language use of the phrase, ‘beyond the bounds of reason.’ [Citation.] In
other words, judicial discretion must be measured against the general rules of law and, in
the case of a statutory grant of discretion, against the specific law that grants the
discretion.” (See also Lealao v. Beneficial California, Inc. (2000) 82 Cal.App.4th 19, 25
[“ ‘[T]he scope of discretion always resides in the particular law being applied, i.e., in the
“legal principles governing the subject of [the] action . . . .” Action that transgresses the
confines of the applicable principles of law is outside the scope of discretion and we call
such action an “abuse” of discretion.’ ”]; Thayer v. Wells Fargo Bank, N.A. (2001)
92 Cal.App.4th 819, 833.)
In sum, we conclude that the trial court denied Rinske’s motion for attorney’s fees
based on a misunderstanding of the law and that it thus abused its discretion. Its order
denying her fee motion is therefore reversed, and we remand the matter to the trial court
to reconsider Rinske’s request for fees in light of the law set forth above.
G. To the Extent the Trial Court Taxed Rinske’s Costs Based on Its
Misunderstanding of Section 1708.6, It Must Likewise Reconsider Its
Ruling on Rick’s Motion to Tax Costs
Rinske sought to recover numerous categories of costs based on the provision in
section 1708.6 that the trial court “may grant to a prevailing plaintiff . . . any other relief
that the court deems proper” in addition to equitable relief, an injunction, costs, and
33
reasonable attorney’s fees. These categories included expert witness fees, jury consultant
fees, a private investigator, travel expenses for an out-of-town witness, and miscellaneous
other costs. The court granted Rick’s motion to tax these costs, although it did not set
forth its basis for doing so. To the extent the court denied these costs based on its
misunderstanding of the scope of section 1708.6, we remand for the court to reconsider
Rinske’s requested costs in light of the foregoing.
In doing so, the trial court should bear in mind what appear to be two errors, one
in the order granting Rick’s motion to tax and the other in the amended judgment. First,
the court taxed Rinske’s “other” expenses (item 13) in the amount of $29,532.75, but
Rick only sought to tax “other” expenses in the amount of $29,257.75—$275 less than
the amount the court actually taxed. It appears that the court’s number was incorrect.
Rinske itemized “other” expenses on Attachment 13 (totaling $5,678.25) and Attachment
13A (totaling $29,532.75). The court appears to have erroneously taxed the total amount
requested on Attachment 13A, rather than the specific items on Attachments 13 and 13A
that Rick sought to tax.
Additionally, the trial court’s order taxed $118,003.75 in requested costs but
denied Rick’s request to tax deposition costs of $17,280. By our calculation, that left
Rinske with recoverable costs in the amount of $37,618.25. Despite this, the amended
judgment awarded her only $17,280, a number apparently erroneously derived from the
court’s order denying Rick’s request to tax deposition costs in that amount.
H. Rinske’s Request for Judicial Notice is Granted
Rinske’s unopposed request for judicial notice is granted.
34
DISPOSITION
The judgment is affirmed. The orders denying attorney’s fees and on the motion
to tax costs are reversed, and the matter remanded for the trial court to reconsider
Rinske’s motion for attorney’s fees and Rick’s motion to tax costs in a manner consistent
with the foregoing. Rinske is awarded her costs on both appeals.
_________________________
Richman, J.
We concur:
_________________________
Kline, P.J.
_________________________
Lambden, J.
35