Opinion Says it Doesn’t Matter if Judge Relied on CCP §1032 Because Award is Discretionary
By a MetNews Staff Writer
Div. One of the First District Court of Appeal yesterday skirted the question of whether a judge, in weighing a request for attorney fees by a defendant in an action for a civil restraining order that was voluntarily dismissed by the plaintiff, must employ the definition of “prevailing party” contained in the general statute on costs.
Carol Myers obtained a temporary restraining order against her border, Alexandria Dorsaneo, following an altercation, resulting in injuries to Myers. The confrontation occurred after Dorsaneo, who was unwell, refused to be tested for COVID-19.
Myers dropped the action after Dorsaneo quit the premises, perceiving no need for a permanent order. Dorseano sought attorney fees pursuant to the civil restraining order statute, Code of Civil Procedure §527.6, which provides in subdivision (s):
“The prevailing party in an action brought pursuant to this section may be awarded court costs and attorney’s fees, if any.”
Marin Superior Court Judge Andrew Sweet denied Dorsaneo’s motion. She appealed, arguing that the judge failed to adhere to Code of Civil Procedure §1032(a)(4) which says that a “prevailing party” includes “a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do recover any relief against that defendant.”
Justice Kathleen Banke said in yesterday’s unpublished opinion:
“We need not decide whether the definitional provisions of Code of Civil Procedure section 1032, subdivision (a)(4) do more than provide guidance and are controlling.”
That because, she explained, it was not clear that Sweet did not avert to §1032(a)(4), but even if he did not, she continued, it didn’t matter because §527.6 provides for a discretionary award.
“In this particular case, the court determined it did not find it to ‘be appropriate to grant the fees,’ and that was a call committed to the sound discretion of the court,” Banke wrote.
Under the facts, she said, no manifest abuse of discretion appeared.
The case is Myers v. Dorsaneo, A161586.
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