Tuesday, June 23, 2026

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Court of Appeal:

Attorney-Fee Order Proper Where Plaintiff Dropped Suit

Justices Say Lawyer/Litigant Who Dismissed Action for Civil Harassment Restraining Order When Offensive Conduct Ceased, but After Trial Began, Must Pay Costs to Defendant, as Prevailing Party

By a MetNews Staff Writer

The Court of Appeal for this district held yesterday that an attorney who sued her neighbor seeking a stay-away order, and dismissed the action after trial commenced, when the alleged when the harassment had ceased, but before a decision was rendered, was properly saddled with an order to pay the defendant $12,500 in attorney fees as the prevailing party.

Justice Kenneth Yegan of Div. Six authored the unpublished opinion.

Simi Valley attorney Jennifer Erin Loew had obtained a temporary civil harassment restraining order against Liliana Marisela Robinson, pursuant to Code of Civil Procedure §527.6. Trial of her bid for a permanent order was in progress before Ventura Superior Court Judge Carol L. Hubner when Lowe decided to dismiss the suit without prejudice.

Hubner made the award under §581(e) which provides:

“After the actual commencement of trial, the court shall dismiss the complaint, or any causes of action asserted in it. it its entirety or as to any defendants, with prejudice, if the plaintiff requests a dismissal, unless all affected parties to the trial consent to dismissal without prejudice or by order of the court dismissing the same without prejudice on a showing of good cause.”

Appellant’s Contention

Lowe argued on appeal:

“The prevailing party requirement is fundamental and cannot be bypassed. Without prevailing party status, no attorney fees may be awarded….

“A voluntary dismissal without prejudice results in no adjudication on the merits and no party prevailing….The litigation [*6] is legally inconclusive, and the parties remain in substantially the same position as before the lawsuit.

“In this case, Appellant’s dismissal was expressly without prejudice due to cessation of harassment. The trial court made no determination on the merits, and Respondent secured no order or relief. Absent a final judgment or voluntary dismissal with prejudice, Respondent cannot be considered a prevailing party.”

Yegan’s Opinion

Yegan wrote:

“Here, appellant voluntarily dismissed the action after trial had already commenced but before the trial court could make a substantive ruling on the merits of her harassment claim. We nevertheless conclude that the trial court could find respondent was the prevailing party and entitled to fees.”

He noted that Hubner did make such a finding. He wrote:

“In exercising its discretion to award fees, the trial court listed several considerations, including that multiple continuances were granted over respondent’s objections, trial had already started, appellant attempted to dismiss the case, via fax. and did so without prior notice to respondent, a point which the trial court took ‘particular note.’

“Based on the foregoing, we reject appellant’s contentions that the trial court…awarded fees without a prevailing party….”

‘Alternative Contention’

He added that Lowe’s “alternative contention that she is the prevailing party because respondent ceased the harassing behavior is not persuasive,” citing Div. Six’s 1993 opinion in Adler v. Vaicius. There it was held that the safeguards in §527.6 would turned “on their head if a person could obtain a TRO ex parte and then, prior to hearing on the injunction, dismiss the proceedings and claim attorney fees as prevailing party before the restrained party had the opportunity for a hearing on the merits.”

Lowe also maintained that “[t]he minimal proceedings that occurred in this case prior to its termination do not constitute the type of substantial litigation contemplated by California courts as justifying significant cost recovery,” saying that the award was excessive. Yegan responded:

“[T]there is no way for us to evaluate appellant’s claims of error on the record before us. To be sure, our review of the minute order reflects that the trial court ‘considered all the filings in this case pertaining to this hearing’ and thereafter awarded fees. On this record, there was no error.”

The case is Loew v. Robinson, B346996.

Robinson was also in pro per.