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Friedman v. Grosso

California Court of Appeals, Second District, Third Division
Jun 5, 2007
No. B193934 (Cal. Ct. App. Jun. 5, 2007)

Opinion


AL FRIEDMAN, Plaintiff and Appellant, v. RICHARD GROSSO, Defendant and Respondent. B193934 California Court of Appeal, Second District, Third Division June 5, 2007

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County, Barry A. Taylor, Judge, Ct. No. LS014438

Law Office of Anthony Kornarens and Anthony Kornarens for Plaintiff and Appellant.

Law Offices of Richard A. Leach and Lee David Lubin for Defendant and Respondent.

KITCHING, J.

INTRODUCTION

A plaintiff who brought a petition for injunctive relief pursuant to Code of Civil Procedure section 527.6 appeals a judgment denying the petition and awarding attorney fees to the defendant. Section 527.6, subdivision (i) gives the trial court discretion to award attorney fees and costs to the prevailing party. The plaintiff claims error because the trial court, in awarding attorney fees to the prevailing defendant, did not make the further determination that plaintiff’s action was unreasonable, frivolous, meritless or vexatious. Plaintiff provides no authority that the trial court must make this additional determination. The trial court denied plaintiff’s application for an injunction because plaintiff had not established, by clear and convincing evidence, that future harm was highly probable. Therefore the trial court properly found that the defendant was the prevailing party. We find no abuse of discretion in the attorney fee award, and affirm the judgment.

Unless otherwise specified, statutes in this opinion will refer to the Code of Civil Procedure.

FACTUAL AND PROCEDURAL HISTORY

On January 27, 2006, plaintiff Al Friedman filed a request for an order to stop harassment against Richard Grosso. Friedman owned Le Bon Bakery at 21928 Ventura Boulevard in Woodland Hills. Grosso owned and operated a restaurant next door to Friedman’s business. Friedman’s declaration stated that Grosso told him on a number of occasions that he intended to kill Friedman or have him killed, and Grosso physically assaulted Friedman on June 28, 2005. He stated that since the assault Grosso continued to threaten Friedman and had told him he intended to have him killed. Friedman asked the court to order Grosso not to harass, attack, strike, threaten, assault, hit, follow, stalk, destroy personal property, keep under surveillance, or block movements. The trial court issued a temporary order against Grosso, and set a hearing for February 7, 2006.

At the hearing before Judge Stephen Petersen, Friedman testified that on June 28, 2005, after he removed a ladder from behind his premises, he saw Grosso destroying Friedman’s patio furniture and yelling obscenities. When Friedman came outside, Grosso put up his fists and yelled, “You want to fight?” As Friedman removed the ladder, Grosso struck him in the back, causing him to hit his head, fall to the ground, and feel tremendous pain. Friedman testified that Grosso had threatened him on four or five previous occasions, which included threats to kill him.

Grosso testified that on June 28, 2005, he believed Friedman had removed a ladder purchased by the landlord for tenants to access the roof. When Friedman went inside, Grosso therefore put back the ladder so workers could work on Grosso’s air conditioning. He admitted he was angry and threw Friedman’s tables. Friedman returned and demanded the ladder, which he said he had purchased; Grosso answered that it was the building’s ladder. Grosso testified that Friedman tried to pull the ladder onto Grosso, who stepped out of the way. Both men gripped the ladder until Friedman let go. Grosso threw the ladder aside. Then Friedman was on top of Grosso and slapped him across the face. Grosso pushed Friedman away. When Friedman came at him again, Grosso pushed him again, harder. Friedman rolled on the ground and tried to pull the ladder on top of Grosso. Then Grosso saw the ladder on Friedman, and he saw blood.

The trial court found that although a battery occurred, Friedman did not establish by clear and convincing evidence that threats made to Friedman indicated that future harm was highly probable. Therefore the trial court did not grant Friedman’s application. The trial court scheduled another hearing for an update on April 5, 2006.

Grosso then moved for an order awarding $4,050.10 in attorney fees as prevailing party pursuant to section 527.6, subdivision (i). Friedman’s opposition argued that the trial court should deny the motion because Friedman’s section 527.6 action was not frivolous, and that Grosso sought excessive attorney fees.

The matter was assigned to Judge Barry A. Taylor effective May 22, 2006. In a judgment filed on July 13, 2006, the trial court dismissed the matter, deemed Grosso the prevailing party under section 527.6, subdivision (i), set Grosso’s reasonable attorney fees incurred in defending the action at $2,500, and ordered judgment in favor of Grosso and against Friedman for $2,500.

Friedman filed a timely notice of appeal.

ISSUE

Friedman claims on appeal that the trial court erroneously applied a “prevailing party” standard and erroneously awarded attorney fees, since Friedman’s application for injunctive relief was not frivolous.

DISCUSSION

This appeal concerns the attorney fee provision of section 527.6, which permits a person who has suffered harassment to seek injunctive relief prohibiting harassment. Section 527.6, subdivision (i) states: “The prevailing party in any action brought under this section may be awarded court costs and attorney’s fees, if any.”

Friedman construes this attorney fee provision as requiring a trial court not only to determine that a defendant is the “prevailing party,” but also to determine that plaintiff’s application for injunctive relief was “frivolous” according to the standard used for Government Code section 12965, subdivision (b), the attorney fee statute in the California Fair Employment and Housing Act (FEHA). (Gov. Code, § 12900 et seq.) Under this standard, an attorney fee award to a prevailing FEHA defendant should be made “ ‘ “only where the action brought is found to be unreasonable, frivolous, meritless or vexatious.” ’ ” (Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1387 (Cummings).)

a. Friedman Has Not Provided Authority That the Trial Court Must

Determine That Plaintiff’s Petition Was “Frivolous” to Award Attorney Fees to a Prevailing Defendant

Friedman cites three cases. None provides authority for requiring a determination that plaintiff’s petition was “frivolous” before a trial court can award attorney fees under section 527.6, subdivision (i).

Siam v. Kizilbash (2005) 130 Cal.App.4th 1563 involved a defendant’s appeal from an order denying his special motion to strike (§ 425.16, subd. (b)(1)) plaintiff’s complaint containing eight causes of action. Plaintiff’s malicious prosecution cause of action was based on defendant’s section 527.6 petition for an injunction. Siam held that the unsuccessful filing of a section 527.6 petition could not form the basis for a malicious prosecution action, reversed the order denying defendant’s special motion to strike, and instructed the trial court to enter a new order granting that motion in part and striking the malicious prosecution cause of action. (Siam, at pp. 1574, 1583.) Siam stated that section 527.6, subdivision (i) provided for attorney fees as sanctions for a frivolous petition, and that the superior court had sanctioned the defendant in his section 527.6 petition by awarding plaintiff more than $12,000 in attorney fees. (Siam, at p. 1573.) Section 527.6, subdivision (i), however, is a fee-shifting statute. It authorizes an award of attorney fees to the prevailing party, but it does not mention attorney fees as sanctions and contains no requirement that an attorney fee award must be conditioned on a determination that the petition was frivolous. Thus the statement in Siam was (1) dicta and (2) incorrect. Siam provides no basis for Friedman’s claim.

Robinzine v. Vicory (2006) 143 Cal.App.4th 1416 also involved a defendant’s appeal from an order denying an anti-SLAPP motion (§ 425.16) which had sought to strike plaintiffs’ malicious prosecution cause of action. Previously the defendants had obtained a temporary restraining order and petitioned for an injunction against plaintiff Robinzine under section 527.8, a statute “enacted to allow employers to seek protections comparable to those offered under section 527.6 to enjoin workplace threats or acts of violence against employees.” (Robinzine, at p. 1423.) When defendants could not prove that Robinzine committed unlawful violence against defendants’ employees, the trial court dissolved the temporary restraining order (TRO) and denied defendants’ section 527.8 petition. Robinzine reasoned that given the similarity between petitions under section 527.6 and section 527.8, the analysis in Siam was correct, and held that section 527.8 petitions did not provide a basis for malicious prosecution actions. (Robinzine, at pp. 1423-1424.) Significantly, Robinzine stated that “a prevailing defendant in an action filed under section 527.8 has available sanctions that can be obtained within the proceeding to redress baseless or harassing allegations[,]” and identified section 128.7 as the statute authorizing such sanctions. It is also significant that section 527.8 has no attorney fee provision. Therefore Robinzine provides no basis for Friedman’s claim.

In Leydon v. Alexander (1989) 212 Cal.App.3d 1, after Alexander, a terminated employee, had an angry conversation with Leydon, his former supervisor, Leydon filed a section 527.6 petition and obtained a TRO prohibiting harassment. After a hearing, the trial court enjoined both Leydon and Alexander from contacting or harassing each other. Alexander appealed, contending that the trial court erroneously found harassment had occurred when the evidence showed only one incident. Leydon held that by defining “harassment” as a course of conduct, the statute could not support issuance of an injunction based on a single incident. Because the evidence showed only a single incident, Leydon reversed the injunction. (Id. at pp. 4-5.) Leydon rejected Alexander’s request to determine that the trial court abused its discretion by ordering each party to bear its own attorney fees. Leydon also refused Alexander’s request to award attorney fees on appeal pursuant to section 527.6. (Leydon, at p. 5.) Leydon does not establish a requirement that a trial court must determine that a section 527.6 petition was “frivolous” before awarding attorney fees to a prevailing defendant.

Friedman has not provided authority that an award of attorney fees to a defendant pursuant to section 527.6, subdivision (i) requires an additional finding that plaintiff’s petition was unreasonable, frivolous, meritless or vexatious.

b. Friedman Has Not Shown Error in the Trial Court’s Determination

That Grosso Was the Prevailing Party

Friedman argues that, like Alexander, the trial court found that Grosso engaged in one instance of deplorable conduct by assaulting Friedman, and therefore Grosso should not have been awarded his attorney fees as a matter of law. Even if the trial court made a finding that a battery was committed, however, section 527.6 required an additional element for issuance of an injunctive relief. A prohibitory injunction pursuant to section 527.6 may not issue unless the court finds, by clear and convincing evidence, that there is a threat of future harm. “Clear and convincing” evidence requires a finding of high probability. A single incident of battery, without a finding that a threat of future harm exists, does not entitle the applicant to injunctive relief. (Russell v. Douvan (2003) 112 Cal.App.4th 399, 400-402.) “An injunction is authorized only when it appears that wrongful acts are likely to recur.” (Id. at p. 402.) The same is true of a TRO. (Ibid., citing § 527.6, subd. (c).)

The trial court found that Friedman had not established, by clear and convincing evidence, that future harm was highly probable. The denial of Friedman’s application for an injunction against Grosso reflected this finding. Therefore the trial court was well within its discretion in finding that Grosso was the prevailing party for purposes of an award of attorney fees.

c. Friedman Has Not Shown That the Rationale for Determining in a

FEHA Case That Plaintiff’s Action Was “Frivolous” Supports Requiring This Determination in a Section 527.6 Petition

Friedman seeks to analogize the standard for an attorney fee award to a defendant pursuant to section 527.6, subdivision (i) to an attorney fee award to a FEHA defendant pursuant to Government Code section 12965, subdivision (b).

Government Code section 12965, subdivision (b) states, in relevant part: “In actions brought under this section, the court, in its discretion, may award to the prevailing party reasonable attorney’s fees and costs[.]” As stated, California courts have adopted the federal standard that a trial court must use in awarding attorney fees and costs to a prevailing defendant in a FEHA case, which standard was set forth in Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412. (Cummings, supra, 11 Cal.App.4th at p. 1387.) A plaintiff brings an antidiscrimination suit in the role of a private attorney general, to vindicate a policy considered by Congress to be of the highest priority. (Ibid.) Likewise the California Supreme Court has identified the right to seek and hold employment free of prejudice as a fundamental right. (Flannery v. Prentice (2001) 26 Cal.4th 572, 584.) The purpose of a fee provision such as Government Code section 12965, subdivision (b) is to make it easier for a plaintiff of limited means to bring a meritorious suit to vindicate this important, fundamental right. Therefore a prevailing plaintiff should ordinarily recover an attorney fee unless special circumstances make such an award unjust. (Cummings, at p. 1387.)

These equitable considerations are absent, however, when a defendant prevails in a FEHA case. Therefore a different standard exists for awarding attorney fees to prevailing defendants. “ ‘[S]uch awards should be permitted “not routinely, not simply because he succeeds, but only where the action brought is found to be unreasonable, frivolous, meritless or vexatious.” ’ ” (Cummings, supra, 11 Cal.App.4th at p. 1387.) Without this additional showing necessary for an attorney fee award to a prevailing defendant in a FEHA case, assessing attorney fees against a plaintiff simply because that plaintiff did not prevail would substantially add to the risks of litigation and would discourage plaintiffs from enforcing their rights pursuant to the FEHA. (Id. at p. 1388.)

Friedman has not shown that section 527.6 petitions for injunctive relief have a comparable public purpose; indeed, such actions seem purely private in nature. Friedman has not shown that section 527.6 petitions for injunctive relief involve enforcement of a fundamental right. Moreover, section 527.6 was enacted to provide quick relief to harassment victims threatened with great or irreparable injury; a section 527.6 petition was designed to be processed simply and expeditiously, and after the petition is filed a hearing is held and an order is issued normally within a few weeks. As a result of this expedited process neither the plaintiff nor the defendant is likely to incur substantial legal fees. (Siam v. Kizilbash, supra, 130 Cal.App.4th at p. 1573.) The statute, moreover, “incorporates an expectation that victims may often seek relief without the benefit of a lawyer.” (Ibid.) For these reasons an attorney fee award to a defendant as prevailing party in a section 527.6 petition for injunctive relief is not likely to discourage plaintiffs from bringing a section 527.6 petition in the same way that a grant of attorney fees to a prevailing FEHA defendant would.

We find no abuse of discretion in the attorney fee award to Grosso.

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to defendant Grosso.

We concur: CROSKEY, Acting P. J., ALDRICH, J.


Summaries of

Friedman v. Grosso

California Court of Appeals, Second District, Third Division
Jun 5, 2007
No. B193934 (Cal. Ct. App. Jun. 5, 2007)
Case details for

Friedman v. Grosso

Case Details

Full title:AL FRIEDMAN, Plaintiff and Appellant, v. RICHARD GROSSO, Defendant and…

Court:California Court of Appeals, Second District, Third Division

Date published: Jun 5, 2007

Citations

No. B193934 (Cal. Ct. App. Jun. 5, 2007)