Metropolitan News-Enterprise


Thursday, March 26, 2009


Page 3


Court Upholds Fee Award to Prevailing Defendant in Harassment Suit


By SHERRI M. OKAMOTO, Staff Writer


A prevailing defendant in an action seeking injunctive relief against harassment may recover attorney fees, even if the action was neither frivolous nor filed in bad faith, the First District Court of Appeal ruled yesterday.

Div. Four upheld a $15,000 award in a Humboldt Superior Court action, saying the applicable statute does not limit fee awards to prevailing plaintiffs. In an unpublished portion of its opinion, the court held that Humboldt Superior Court Judge Christopher G. Wilson did not abuse his discretion in granting Michael Maschmeier’s motion for attorney fees and costs incurred during Jacqueline Krug’s attempt to secure a temporary restraining order against him.

While Krug and Maschmeier were both employed as wardens by the California Department of Fish and Game in June 1999, Krug alleged Maschmeier told her that people who interfered with him died and their deaths looked like accidents.

Krug said she interpreted his statement as a threat. She also claimed that Maschmeier had made sexually offensive statements to her, blocked or impeded her movements on some occasions, and touched her inappropriately.  

The Department of Fish and Game subsequently issued an order directing Maschmeier to stay away from Krug. After Krug said she learned the order had been lifted in 2007, she filed suit seeking injunctive relief against Maschmeier.

At the hearing on her petition, she testified that Maschmeier had not consistently complied with the stay-away order issued by the department, but admitted that he had never directly threatened her, harmed her, propositioned her, or sent communications to her at home.

Maschmeier moved to dismiss the petition at the close of Krug’s evidence, and Wilson granted the motion. Maschmeier then filed a motion seeking a total of $24,414.35 for fees and costs.

Krug opposed the motion, in part, on the grounds that her action was not frivolous and that some of the attorney time for which Maschmeier sought to recover was not properly chargeable.

Wilson granted Maschmeier’s motion, but reduced the amount to $15,000.

Writing for the appellate court, Presiding Justice Ignacio J. Ruvolo noted that Code of Civil Procedure 527.6 provides that a person who suffers harassment may seek a temporary restraining order and an injunction prohibiting harassment, and that the “prevailing party in any action brought under this section may be awarded court costs and attorney’s fees.”

The word “may” is permissive, Ruvolo explained, granting the trial court discretion to order an award attorney fees.

Noting numerous other statutes in which the Legislature has expressly limited the recovery of attorneys fees to those instances where the plaintiff’s claim was frivolous or  made in bad faith, Ruvolo reasoned that the Legislature’s failure to include a similar limitation in Sec, 527.6 “leads inescapably to the conclusion that both plaintiffs and defendants in section 527.6 proceedings have an equal opportunity to recover their attorney fees, as well as costs, if they prevail.”

Ruvolo concluded in the unpublished portion of the opinion that Krug’s rationale for awarding fees, which was set forth explicitly and in detail in the fee order, was not an abuse of discretion

As Krug had not filed a motion to tax costs, Ruvolo further concluded that Krug waived her right to contest the amount of the cost award.

Justices Patricia K. Sepulveda and Maria P. Rivera joined Ruvolo in his opinion.

The case is Krug v. Maschmeier, 09 S.O.S. 1839.


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