Hao v. Wang CA2/8 ( 2022 )

Filed 8/12/22 Hao v. Wang CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
LIU HAO, B306737
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 20PSCP00134)
v.
AILING WANG,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Gloria L. White-Brown, Judge. Reversed and
remanded with directions.
Law Offices of Ann C. Schneider and Ann C. Schneider for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_________________________________
Liu Hao, a tenant, sought a civil harassment restraining
order under Civil Procedure section 527.6 against his landlord
Ailing Wang.1 The trial court granted the restraining order, and
also awarded Hao $500 in special damages and $2,000 in
damages for pain and suffering.
Wang appeals, arguing that the award of damages in
addition to injunctive relief is not supported by the language and
purpose of section 527.6. Wang also claims that the trial court’s
award of attorney’s fees and costs was an abuse of discretion
because it was predicated on its unauthorized award of damages
to Hao under section 527.6.2
We agree with Wang that section 527.6 did not permit the
trial court to award damages. In Olson v. Doe (2022) 12 Cal.5th
669 (Olson), our Supreme Court recently clarified that damages
are not an available remedy in a suit under section 527.6 for
injunctive relief.
As to attorney’s fees, Wang forfeited her arguments on
appeal by not opposing Hao’s motion for attorney’s fees and costs
before the trial court. However, our reversal of the appealed
order, which the subsequent attorney’s fees award is based on,
compels the reversal of the fee order on remand.
We reverse and remand with instructions.
1 Undesignated statutory references herein are to the
Code of Civil Procedure.
2 Hao did not file an opposition brief or otherwise respond to
Wang’s appeal.
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FACTUAL AND PROCEDURAL BACKGROUND
In May 2020, Hao filed a petition for a civil harassment
restraining order against Wang, seeking personal conduct orders,
stay-away orders, a temporary restraining order, attorney’s fees
and costs, and damages for pain and suffering and medical
expenses. The petition arose from a dispute between Hao, a
tenant, and Wang, a landlord, in which Hao accused Wang of
“hiding her identity, peeping, and trespassing into Hao’s room
multiple times,” and harassing and threatening him on several
occasions. Wang also allegedly closed a door on Hao’s toe,
causing an injury requiring surgical treatment.
The trial court held a hearing on the petition in June 2020.
It then issued the petitioned for civil harassment restraining
order, using the form order approved by the Judicial Council of
California. On the form order, the trial court checked the box
indicating “[a]dditional orders are attached at the end of this
Order on Attachment 11.” The orders in Attachment 11 are for
$500 for medical costs and $2,000 for pain and suffering, and for
attorney’s fees and costs, with plaintiff’s counsel to submit a
memorandum and declaration regarding fees and costs.
On July 20, 2020, Wang timely filed a pro se notice of
appeal.
On August 25, 2020, Hao filed a motion for attorney’s fees
and costs with the trial court. Wang did not file an opposition to
that motion, nor appear at the hearing on the motion. The
minute order states that Hao was to submit a proposed order and
give notice of the ruling to Wang. There is no evidence in the
record that Hao took these actions or that a formal judgment or
order regarding attorney’s fees was issued.
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DISCUSSION
I. Damages Are Not Available Under Section 527.6
Wang argues that section 527.6 does not permit the
recovery of damages as a remedy, citing the plain text of section
527.6, rules of statutory construction, and the need to avoid
unconstitutional and absurd results. Wang asserts that the trial
court’s award of damages constituted prejudicial error under
section 475. We agree.
While this appeal was pending, our Supreme Court
addressed this issue in Olson, supra, 12 Cal.5th 669, making
clear that damages are not an available remedy for a successful
section 527.6 petition. “[S]ection 527.6 provides a specialized
procedure for a petitioner who has suffered harassment within
the meaning of the statute to expeditiously seek a limited judicial
remedy — injunctive relief to prevent threatened future
harm . . . . A petitioner who also desires retrospective relief in
connection with the same underlying conduct, such as tort
damages, must do so separately.” (Olson, supra, at p. 673.)
The Olson court elaborated: “That the petitioner in a section
527.6 proceeding has no ability to seek, and the court has no
authority to order, redress of past wrongs through damages or
otherwise does not mean that a petitioner waives the right to
separately seek such other remedies merely by utilizing this
specialized statutory procedure for imminent injunctive relief.
To the contrary, the statute expressly provides that ‘a petitioner’
is ‘not preclude[d] from using other existing civil remedies.’
[Citation.]” (Olson, supra, 12 Cal.5th at p. 682.)
In sum, the trial court could not order retrospective relief
through the section 527.6 petition process and committed
prejudicial error by awarding monetary damages to Hao.
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Hao may seek damages using other civil remedies, but not
through the section 527.6 petition process. (Olson, supra,
12 Cal.5th at p. 682.)
II. Attorney’s fees
A. Separate Appeal Not Necessary
A post-judgment order awarding attorney’s fees is
separately appealable. (§ 904.1, subd. (a)(2).) Wang did not file a
separate appeal of the tentative order granting Hao’s motion for
attorney’s fees and costs.3 Wang concedes this, but argues that
her appeal of the trial court’s prior order on the petition
encompasses the second order on the fees and costs. We agree.
When the appealed order awards attorney’s fees, but does not
determine the amount, the appeal from the first order
encompasses the subsequent order. (Golightly v. Molina (2014)
3 There is nothing in the record indicating that the trial
court issued a final judgment on attorney’s fees, so Wang also
argues in the alternative that her arguments may be premature.
When the only impediment to appealability is the trial court’s
failure to enter an appealable judgment, we may construe a
preliminary order as a judgment to prevent unnecessary delay
and treat the appeal as taken from that preliminary order.
(See, e.g., Hedwall v. PCMV, LLC (2018) 22 Cal.App.5th 564, 571
[“[W]e deem the rulings to incorporate a judgment of dismissal”];
Estate of Dito (2011) 198 Cal.App.4th 791, 800 [“No purpose
would be served by dismissing the appeal and requiring
appellants to file a new appeal after securing a judgment . . . ”];
Sarah B. v. Floyd B. (2008) 159 Cal.App.4th 938, 940, fn. 2.)
We construe the order on the attorney’s fees here as a judgment
in the interests of efficiency, which is particularly appropriate
here given our subsequent finding that Wang forfeited her
attorney’s fees arguments by not objecting to the motion below.
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229 Cal.App.4th 1501, 1520–1521; Norman I. Krug Real Estate
Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46.)
Here, the appealed order granting the civil harassment
restraining order states under “other orders”: “attorney’s fees and
costs to be determined.”
B. Wang Forfeited Her Arguments on Appeal
Wang did not file an opposition to Hao’s motion for
attorney’s fees, nor appear at the hearing on that motion, so she
has forfeited any arguments regarding the trial court erroneously
granting that motion. “A failure to oppose a motion may be
deemed a consent to the granting of the motion.” (Cal. Rules of
Court, rule 8.54(c).) Generally, a “[f]ailure to register a proper
and timely objection to a ruling or proceeding in the trial court
waives the issue on appeal.” (Bell v. American Title Ins. Co.
(1991) 226 Cal.App.3d 1589, 1602.) This can be true in the case
of attorney’s fees where the party failed to oppose the motion
below. (See Findleton v. Coyote Valley Band of Pomo Indians
(2018) 27 Cal.App.5th 565, 569.)
Our Supreme Court has made clear that an “appellate
court’s discretion to excuse forfeiture should be exercised rarely
and only in cases presenting an important legal issue.” (In re
S.B. (2004) 32 Cal.4th 1287, 1293.) We exercise this rare
discretion when the claim of error is legal and the facts are
undisputed, particularly where there is a substantive defect
asserted, such as jurisdiction. (See Palmer v. Shawback (1993)
17 Cal.App.4th 296, 300 [considering new theory of recovery for
attorney’s fees on appeal where question was one of law only];
see also Eisenberg et al., Cal. Practice Guide: Civil Appeals and
Writs (The Rutter Group 2021) ¶ 8:272 [question of law on
undisputed evidence may be considered on appeal for first time
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where there is a “noncurable substantive defect (e.g., lack of
jurisdiction or failure to state a cause of action) or a matter
affecting the public interest or administration of justice”].)
Wang does not argue that this is a rare case where we should
decline to find forfeiture. She does not explain why she failed to
oppose the motion or appear at the hearing, nor argue that this is
an important legal issue.
C. Modification of Attorney’s fees on Remand Due to
Reversal of Underlying Judgment
Regardless of Wang’s failure to preserve the issue of
attorney’s fees, our decision changes the potential basis for the
award of fees. The trial court determined that Hao is entitled to
fees and costs based on a decision that awarded both injunctive
relief and damages. Section 527.6, subdivision (s) authorizes an
award of attorney’s fees to the prevailing party. The record is
silent as to the extent to which the trial court based the
attorney’s fees on its erroneous award of damages. The reversal
of a judgment underlying a subsequent attorney’s fees award
compels the reversal of the fees order—whether or not it was
separately appealed—when the first judgment determined the
entitlement to fees. (See Ulkarim v. Westfield LLC (2014) 227
Cal.App.4th 1266, 1282; Eisenberg et al., Cal. Practice Guide:
Civil Appeals and Writs (The Rutter Group 2021) ¶¶ 11:68.2-
11:68.2a. [“Where the underlying judgment determines
entitlement to fees and provides for later determination of the
amount to be awarded, a notice of appeal from the judgment
subsumes the subsequent order setting the amount of fees, which
need not be separately appealed”].) As discussed above, the
appealed order awarded attorney’s fees and costs in the
additional orders in Attachment 11, but did not determine the
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amount. Moreover, in the subsequent minute order on the
motion for attorney’s fees and costs, the court explicitly found
that Hao was “entitled” to fees and costs citing, among other
things, its prior award of damages in Attachment 11 of the
appealed order. On remand, the trial court can determine
whether the elimination of damages alters an award of attorney’s
fees under section 527.6, subdivision (s).
DISPOSITION
The order is reversed and remanded. On remand, the trial
court should vacate the award of special and general damages,
without prejudice. It should also reconsider the related
attorney’s fees and costs award and decide whether fees and costs
should be awarded, and if so, in what amount, based solely on the
order granting the petition for a civil harassment restraining
order. Fees and costs are only available under section 527.6,
subdivision (s). Appellant Wang is entitled to costs on appeal.
*
HARUTUNIAN, J.
We concur:
GRIMES, Acting P. J.
WILEY, J.
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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