Bolander v. Bolander

 

 

 

 

 

 

 

 

 

 

 

 

 

Filed 7/25/13 
Bolander v. Bolander CA1/2

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

FIRST
APPELLATE DISTRICT

 

DIVISION
TWO

 

 
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RINSKE BOLANDER,             Plaintiff and Respondent, v. FREDERICK BOLANDER,             Defendant and Appellant.	A133834         (San Mateo County       Super. Ct. No. CIV 492551)
RINSKE BOLANDER,             Plaintiff and Appellant, v. FREDERICK BOLANDER,             Defendant and Respondent.	A134509         (San Mateo County       Super. Ct. No. CIV 492551)

 

Plaintiff Rinske
Bolander (Rinske) sued her now ex-husband, defendant Frederick (Rick) Bolander,
for domestic violence after he twice
drugged her with Ambien and engaged in nonconsensual sexual intercourse with
her while she was incapacitated.href="#_ftn1"
name="_ftnref1" title="">[1]  A jury found in favor of Rinske, awarding her
$30,000 in economic damages, $175,000 in noneconomic damages, and $200,000 in
punitive damages, for a total award of $405,000.

After the trial,
Rinske filed a motion for attorney’s fees, seeking $455,600 plus a 1.5
multiplier, and a memorandum of costs seeking $155,622.  The trial court denied Rinske’s fee request
and, on Rick’s motion to tax costs, awarded Rinske only a fraction of the costs
requested.

Both sides
appeal.  Rick’s appeal asserts multiple
errors that he claims require reversal of the judgment.  We reject his arguments, and we affirm the
judgment. 

Rinske’s appeal
argues that the trial court abused its discretion in denying her request for
attorney’s fees in its entirety and in rejecting a substantial portion of her
costs.  We conclude that, based on a
misunderstanding of the applicable law, the trial court abused its discretion
in ruling on Rinske’s requests for fees and costs.  We therefore remand for the trial court to
reconsider Rinske’s motion for attorney’s fees and Rick’s motion to tax costs
in a manner consistent with this decision. 


>FACTUAL BACKGROUND

Rick and Rinske
met in 1995 and dated for two years before marrying in 1997.  The relationship was characterized by an
active sex life, with Rick having very high expectations concerning the
frequency of sexual intercourse.  He
expected sex “every day or sometimes twice a day” when he was not away on
business.

The marriage
produced four children, all very close in age.href="#_ftn2" name="_ftnref2" title="">[2]  By the time Rinske had their second child,
she was worn out from the demands of motherhood.  Despite her exhaustion, Rick maintained very
high expectations in terms of their sex life. 
His sexual demands were becoming a burden to Rinske, and by 2006, the
marriage was strained.  The couple sought
help from a marriage counselor, and Rinske began to communicate to Rick that
she needed rest and that she wanted to have sex less frequently.  Despite her request, Rick’s expectations did
not lessen.  In fact, his demands
increased, and he wanted to have sex with Rinske “a couple different times
every morning and every evening.”  Rinske
felt worn down by his demands, and began to reject Rick’s advances more and
more.  Rick took it personally and became
angry.

By early January
2007, after a weekend away when the couple had intercourse seven times, Rinske
told Rick that she was no longer able to acquiesce in his sexual demands.  She wanted him to treat her with respect and
to recognize and honor her needs and feelings. 
She began sleeping on a small cot in the youngest child’s nursery instead
of in the master bedroom with Rick.  Rick
responded with anger and isolation, questioning Rinske’s love for, and
commitment to, him.

On March 7, 2007,
Rick, who had been traveling for work, arrived home around 8:00 p.m., after the
children had gone to bed.  He opened a
bottle of red wine in the kitchen and, out of Rinske’s view, poured her a
glass.  Unbeknownst to Rinske, Rick then
put one-half of an Ambien tablet in the wine.href="#_ftn3" name="_ftnref3" title="">[3]  After drinking the glass of wine, Rinske
“fell asleep and . . . kind of nodded [herself] awake.”  As she described it at trial, “I didn’t feel
well, but I was also very concerned that I fell asleep because I had never
nodded off, you know—even given all the strange hours with all the kids, I
never nodded off at the table, but I kind of nodded myself awake.  I did not feel well.  I felt very nauseous and light-headed and
dizzy.  And I just did not feel
well.  I didn’t know what was happening.”


Because Rinske
felt ill, she told Rick she was going to go to bed.  She walked upstairs to the bedroom and “just
fell in bed.”  The next thing she
remembered was Rick on top of her having sex with her.  She was unable to speak or move her
arms:  “I remember not being able to move
my arms.  And I remember not being able
to speak.  I remember feeling like I was
under water.  And my vision—I could see
directly in front of me but not—everything else was kind of faded out, but I
couldn’t move.”  She did not want to be
having sex with Rick, and she was terrified because she was “frozen.”

Rinske’s next
memory was waking up in the morning and immediately asking Rick if they had had
intercourse.  He told her they had,
describing it as “wonderful.”  She asked
if he had worn a condom, and he told her, with a smile, he had not.  Rinske feared he was trying to get her
pregnant so she would not leave him.

Rinske then went
into the bathroom to take a shower.  In
the shower, she fell down when she closed her eyes to rinse her hair.  She lost her balance and “felt very
disoriented like the room was spinning . . . .”

A second, similar
incident occurred seven weeks later.  On
the evening of April 22, 2007, Rick poured Rinske a glass of wine to drink
with dinner.  Again, he laced it with
Ambien without Rinske’s knowledge.  After
the children went to bed, Rick and Rinske sat down to watch a movie in the
family room, with Rick getting up during the movie to get them more wine.  As they were watching the movie, Rinske
suddenly experienced double vision, so she sat up and tried to regain her
normal vision.  An erotic scene set in a
strip club then came on, and Rick moved next to Rinske on the couch, telling
her that the scene was exciting and he wanted to touch her.  She told him to focus on the movie because
she did not want to have sex.  She
suddenly felt “really drunk,” “wasted,” “just like a rag doll.”  Despite Rinske having told Rick she did not
want to have sex, he unbuttoned her shirt and began to fondle her.  Rinske was “completely out of it” and could
not say “No,” or tell him to stop.  Rick
performed oral sex on Rinske, and then forced her to perform it on him, only
stopping when she gagged from his forceful thrusting.  He then engaged in sexual intercourse with
her, first from the front and then from the back, at one point forcing her head
down onto the ottoman and pulling her hair tight.  Rinske’s last memory of the incident was seeing
the gray leather of the ottoman.

When Rinske woke
up the next morning, she was in the master bedroom.  She felt “heavy-headed,” “off-center,” and
disoriented.  Rick, who was in the room
getting ready for work, described their sex of the night before, again
proclaiming it “wonderful.”  

On April 27, five
days after the second incident, Rinske walked in on Rick in the kitchen as he
was slipping Ambien into a glass of red wine he had just poured for her.  Although he initially denied it, he
subsequently admitted that he had put Ambien in her wine on the two prior
occasions, claiming he did it to reignite the love they had and save their
relationship.  He maintained, however,
that the sex was consensual. 

As a result of the
incidents, Rinske suffered severe emotional distress and physical
manifestations in the form of posttraumatic stress disorder (PTSD) that
required extensive therapy.

>PROCEDURAL BACKGROUND

On March 3, 2010,
Rinske filed a complaint alleging four causes of action:  (1) spousal rape (Pen. Code, § 262); (2)
sexual battery (Civ. Code, § 1708.5href="#_ftn4"
name="_ftnref4" title="">[4]);
(3) domestic violence (§ 1708.6); and (4) intentional infliction of
emotional distress.  Rick answered on
April 9.

On June 27, 2011,
Rinske dismissed her first, second, and fourth causes of action, apparently
because they were barred by the statute of limitations.  As a result, only her claim for domestic
violence under section 1708.6 remained.

On June 30, 2011,
Rick filed a motion for judgment on the pleadings, seeking dismissal of
Rinske’s domestic violence claim.  He
argued that her allegations did not constitute domestic violence because she
did not allege bodily injury.  Instead,
they could only be asserted as a claim for sexual battery under section 1708.5,
which claim she had already dismissed as time-barred.  The trial court denied Rick’s motion.

Trial commenced
with jury selection on July 5, 2011. 
Testimony began on July 12 and concluded after seven days of
testimony.  After both parties had
rested, Rick moved for a directed verdict, again arguing that due to the
absence of bodily injury, Rinske’s claim did not fit the elements of domestic
violence but rather described sexual battery, which claim was time-barred.  The trial court denied this motion as well.

Following closing
arguments on July 21, the jury briefly deliberated before retiring for the
day.  The next day the jury returned with
a verdict for Rinske, awarding her $30,000 in economic damages, $175,000 in non‑economic
damages, and $200,000 in punitive damages, for a total award of $405,000. 

After trial, Rick
filed motions for judgment notwithstanding the verdict and new trial.  Both argued that Rinske failed to establish
that he intentionally or recklessly inflicted physical harm upon Rinske or
caused her apprehension of serious bodily injury.  Both were premised on his previously
urged—and previously rejected—argument that Rinske’s domestic violence claim
was not properly before the jury because her evidence did not fit the elements
of such a claim.  Instead, he again
contended, her allegations fit a claim for spousal rape or sexual battery, both
of which she had dismissed prior to trial as barred by the href="http://www.fearnotlaw.com/">statute of limitations.  On October 25, 2011, the trial court denied
both motions.

Meanwhile, as will
be detailed below, on August 19, 2011, Rinske filed a memorandum of costs
seeking $155,622, and on September 8, 2011, she moved for attorney’s fees of
$455,600 plus a 1.5 multiplier and $10,000 for the fee motion itself.  The trial court denied her fee request and,
on Rick’s motion to tax costs, rejected a majority of her requested costs.  An amended judgment was entered on December
22, 2011, awarding Rinske $17,280 in costs. 


Both parties
timely appealed, Rick from the judgment, and Rinske from the orders denying her
fees and taxing her costs and from the amended judgment.  We ordered the appeals consolidated.

>DISCUSSION—RICK’S APPEAL

>A.    Sexual
Assault Is Actionable Under the Domestic Violence Statute

In what one might
consider Rick’s primary argument—a lengthy one consuming 14 pages of his
opening brief—he contends that Rinske’s section 1708.6 domestic violence claim
was not properly before the jury.  This
argument is premised on the same theory that he unsuccessfully advocated in his
four motions, for:  judgment on the
pleadings, directed verdict, judgment notwithstanding the verdict, and new
trial.  As he explains it, the facts
alleged by Rinske—namely, that he drugged her with Ambien and had nonconsensual
sex with her—describe a claim for sexual battery pursuant to
section 1708.5.href="#_ftn5"
name="_ftnref5" title="">[5]  Even if true, which he denies, they would not
constitute domestic violence because Rinske neither alleged nor demonstrated at
trial that she suffered bodily injury or apprehension of imminent serious
bodily injury, an element
section 1708.6 unambiguously requires. 
He submits the issue is one of statutory interpretation and that claims
under sections 1708.5 and 1708.6 are mutually exclusive, with section 1708.5 a
specific statute that governs over section 1708.6.  According to Rick, “spousal rape is simply
not the equivalent of ‘bodily injury.’ â€ And, he submits, Rinske should
not have been permitted to resurrect her time-barred and dismissed claims of rape
and sexual battery under the guise of domestic violence.  We are not persuaded. 

To begin with, the
legislative history of section 1708.6 belies Rick’s assertion that the two
statutes are mutually exclusive.  In its
analysis of Assembly Bill 1933 (2001‑2002 Reg. Sess.), which was
ultimately codified as section 1708.6, the Assembly Committee on Judiciary
observed that Assembly Bill 1933 and Assembly Bill 1928 (2001‑2002 Reg.
Sess.), which would become section 1708.5, “overlap somewhat as to the acts
that would be actionable under each . . . .”  Similarly, the Assembly Republican Bill
Analysis of Assembly Bill 1933 noted that the two statutes “would both overlap
with existing law and each other . . . .”  And the statutory provisions themselves both
state that “The rights and remedies provided in this section are in addition to
any other rights and remedies provided by law.” 
(§ 1708.5, subd. (e); § 1708.6, subd. (d).)

Moreover, Rick
fails to cite any authority supporting this position.  And existing authority is to the contrary.

In >Pugliese v. Superior Court (2007) 146
Cal.App.4th 1444, the wife had been subjected to numerous acts of abuse by her
husband.  Like here, the wife’s claims
for assault and battery were time-barred, so the court considered whether she
could assert the same claims as a domestic violence cause of action under
section 1708.6.  In holding that she
could, it stated: 

“The time for
commencement of an action under Civil Code section 1708.6 is governed by Code
of Civil Procedure section 340.15, which provides:  ‘(a) In any civil action for recovery of
damages suffered as a result of domestic violence, the time for commencement of
the action shall be the later of the following:

“ â€˜Within
three years from the date of the last act of domestic violence by the defendant
against the plaintiff.

“ â€˜(2) Within
three years from the date the plaintiff discovers or reasonably should have
discovered that an injury or
illness resulted from an act of domestic violence by the defendant against
the plaintiff.

“ â€˜(B) As
used in this section, “domestic violence” has the same meaning as defined in
Section 6211 of the Family Code.”

“Family Code
section 6211 defines ‘domestic violence’ as ‘abuse perpetrated against
. . . [a] spouse or former spouse.’ 
(Fam. Code, § 6211, subd. (a).)

“ â€˜Abuse’ is
defined as any of the following:  ‘(a)
Intentionally or recklessly to cause or attempt to cause bodily injury.  [¶] (b) Sexual assault.  [¶] (c) To place a person in reasonable
apprehension of imminent serious bodily injury to that person or to another.
[¶] (d) To engage in any behavior that has been or could be enjoined pursuant
to Section 6320.’  (Fam. Code, § 6203.)”  (Pugliese
v. Superior Court, supra, 146 Cal.App.4th at pp. 1448-1449, fn. omitted.)

Following that
exposition of the law, the Court of Appeal concluded as follows:  “Although the assault and battery causes of
action are barred by the applicable statute of limitations, the complaint,
taken as a whole, alleges a violation of Civil Code section 1708.6.  Michele claims that during the period June
1989 to April 2004, Dante shoved, pushed, kicked, hit, slapped, shook, choked
and sexually abused her.  She also
alleges he pulled her hair, pinched and twisted her flesh, threatened to kill
her, threatened her with bodily harm, confined her in the family car while
driving erratically and drunkenly and infected her with sexually transmitted
diseases.  Clearly, Michele has alleged
that Dante intentionally or recklessly caused or attempted to cause her bodily
injury, sexually assaulted her, placed her in reasonable apprehension of
imminent serious bodily injury and engaged in behavior that could have been
enjoined pursuant to Family Code section 6320.  We therefore conclude Michele has set forth a
cognizable claim for domestic violence.” 
(Pugliese v. Superior Court,
supra, 146 Cal.App.4th at p. 1450.) 

Likewise
here:  domestic violence expressly
includes sexual assault, and Rinske’s claim was thus properly before the jury.

B.    Rick’s Factual Recitation Is
Inadequate For a Substantial Evidence Challenge

In a separate
argument, Rick asserts a substantial evidence challenge to the jury’s verdict
(although he fails to identify the substantial evidence test as the applicable
standard of review).  He contends that
Rinske “failed to show the requisite elements of a domestic violence claim,”
because “there was absolutely no evidence that Defendant intentionally or
recklessly attempted to put his ex‑wife in danger of bodily injury.”  Significantly for our purposes, an
appellant challenging the sufficiency of the evidence to support a judgment is
required to state in the opening brief all evidence pertinent to that
point.  If this is not done, the
reviewing court may treat the issue as forfeited.  (In re
Marriage of Fink (1979) 25 Cal.3d
877, 887; Foreman & Clark Corp. v.
Fallon (1971) 3 Cal.3d 875, 881; Arechiga
v. Dolores Press, Inc. (2011) 192 Cal.App.4th 567, 571-572; >In re Marriage of Steiner (2004) 117
Cal.App.4th 519, 530; Estate of Hilton (1996)
44 Cal.App.4th 890, 922; Cal. Rules of Court, rule 8.204(a)(2)(C)
[appellant’s opening brief must “[p]rovide a summary of the significant facts
limited to matters in the record”]; Eisenberg et al., Cal. Practice Guide:  Civil Appeals & Writs (The Rutter Group
2012) §§ 8:70-8:71, p. 8-36.)  Rick
was thus required to set forth all material evidence in his opening brief.  This, he failed to do. 

Despite that the
presentation of evidence at trial consumed seven days and resulted in a reporter’s
transcript of over 1,300 pages, Rick’s factual statement in his opening brief
consists in its entirety of the
following two paragraphs:  “On or about
March 3, 2010, Rinske Bolander filed her suit for her original four
claims.  [Citation.]  As noted above, three of those claims:  1) spousal rape, 2) sexual buttery [>sic], and [3)] intentional infliction of
emotional distress were voluntarily dismissed prior to trial leaving the one
and only remaining claim—domestic violence, pursuant to Cal. Civil Code
Section 1708.6.  [Citation.]  [¶] With the remaining claim, Plaintiff
alleged four instances of domestic violence, surrounding allegations that on
two occasions, March 7, 2007 and April 22, 2007, Defendant mixed the drug
Ambien into a glass of wine that he served to his wife, and subsequently
engaged in sexual activity with her. 
Plaintiff’s theory was that each instance of Defendant serving the wine
mixed with Ambien was an instance of domestic violence; and each subsequent
sexual encounter was also an instance of domestic violence, as defined by
Section 1708.6.  [Citation.]  No other allegation of any other incident of
domestic violence was before the Court.” 


The deficiencies
of Rick’s iteration of the facts are obvious, and we easily conclude he forfeited
his substantial evidence challenge. 

In attempting to
persuade us otherwise, Rick claims that his abbreviated recitation of facts was
adequate because “the fundamental facts are not in dispute.”  This assertion is belied by the fact that the
parties disputed whether the sexual intercourse was consensual and whether
Rinske suffered bodily injury as a result of it.  Moreover, in challenging a verdict as
unsupported by substantial evidence, Rick was obligated to set forth all >material facts, not just >disputed facts.

Rick also submits
that the fact that his opening brief  contained an adequate rendition of the facts
was “evidenced by the fact that [Rinske’s] Respondent’s Brief adds no new facts
that are material to the tort of domestic violence.”  He claims that in her own statement of facts,
Rinske spent only one paragraph describing her injuries.  This completely disregards the three pages of
facts detailing what she experienced after she consumed the Ambien-laced wine,
testimony that specifically related to the bodily injury and apprehension of
imminent serious bodily injury that she suffered.

Lastly, Rick
submits that the law did not require him to set forth all material evidence in
a particular section, suggesting that all material facts are contained
elsewhere in his opening brief.  It is
true that peppered throughout Rick’s opening brief are references to other
evidence offered at trial, some to Rinske’s testimony and others to that of her
professional witnesses.  Not only do many
of these references lack citation to the reporter’s transcript,href="#_ftn6" name="_ftnref6" title="">[6]
but these occasional references are few—and certainly do not provide a whole
and complete summary of the evidence pertinent to Rinske’s domestic violence
claim.   In short, Rick’s briefing
manifests total disregard for settled principles of appellate procedure.  Such conduct is not to be condoned.

C.     Substantial
Evidence Supported the Jury’s Verdict

But even if we
were to give Rick the benefit of the doubt and agree that he set forth an
adequate recitation of material facts—which we do not—his argument would
nevertheless fail because substantial evidence supported the jury’s
verdict. 

As noted above, a
claim for domestic violence under section 1708.6 consists of the infliction of
injury on the victim resulting from abuse by a person having a relationship
with the victim.  Section 1708.6
incorporates Penal Code section 13700’s definition of “abuse,” which is
“intentionally or recklessly causing or attempting to cause bodily injury, or
placing another person in reasonable apprehension of imminent serious bodily
injury to himself or herself, or another.” 
Here, Rinske presented ample evidence to support a conclusion that by
incapacitating her with Ambien and then having sexual intercourse with her
without her consent, Rick intentionally or recklessly inflicted bodily injury
upon her or placed her in reasonable apprehension of imminent serious bodily
injury.

As previously
detailed, Rinske testified that after the first time Rick drugged her, she did
not feel well.  She was nauseous,
light-headed, and dizzy.  She could not
speak or move and she felt like she was under water, which she described as
“terrifying.”  Her vision was impaired in
that she could see directly in front of her but everything else was “faded
out.”  She did not want to have sex with
Rick but she was “frozen” and could not stop him.  She described it as “petrifying” because she
did not know what was happening to her body. 
The following morning, she lost her balance and fell down in the shower
because she “felt very disoriented like the room was
spinning . . . .”

During the April
22 incident, Rinske described similar physical feelings, but also detailed the
sexual intercourse.  According to
Rinske’s testimony, Rick forced her to perform oral sex on him, causing her to
gag from his forceful thrusting.  He then
had intercourse with her from the front and back, at one point forcing her head
down onto the ottoman and pulling her hair back tightly.

In addition to her
own testimony, Rinske introduced testimony by her professional witnesses who
testified that as a result of the Ambien incidents, Rinske suffered from
PTSD. 

Despite this
evidence, Rick still insists that “There is no evidence that Rinske Bolander
was the victim of violence or that she suffered physical injury.  There was no evidence that she was placed in
reasonable apprehension of imminent serious bodily injury.”  In light of the foregoing, we easily conclude
to the contrary.

D.    Rick Forfeited His Argument That He Was
Prejudiced by Excessive Testimony About Rape

In a third argument, Rick
contends that he was prejudiced by improper references to the word “rape” at
trial.  Once again, he notes that prior
to trial Rinske dismissed her spousal rape, sexual battery, and intentional
infliction of emotional distress claims. 
Despite this, she repeatedly offered testimony—either her own or that of
her professional witnesses—that he had nonconsensual sex with her, testimony
that often referred to the encounters as “rape.”  This was done, Rick claims, to prejudice the
jury against him, despite the fact that any testimony regarding nonconsensual
sex was, according to him, irrelevant to Rinske’s domestic violence claim and
despite the court’s pretrial ruling that references to “rape” would not be
permitted. 

Rick cites
multiple examples of the purportedly objectionable testimony.  For one, he quotes the following question
posed to Rinske by her counsel:  “You’ve
never in your past had any situation where, before March 7th, with the
defendant or anybody else, where you felt there was a date rape or you were
drugged or that you were sexually assaulted or that you had nonconsensual sex;
you have no history of that, correct.” 

Additionally, in a
section of his opening brief entitled, “The Court allowed the Plaintiff’s
counsel to elicit comments from Rinske Bolander alleging she was raped,”  Rick quotes a passage from Rinske’s
deposition testimony that he claims her counsel read to the jury, as follows:

“Question:  Is this the testimony you gave on that
subject at your deposition, same date‑yes.  I’m sorry. 
This is Thursday, July 22nd, 2010, at page 458—at page 23:

“ â€˜Question:  Okay. 
I mean—when you read it, did you think to yourself that “This guy really
loves me”?’

“ â€˜Answer:  I honestly think that he did love me.  And why? 
Why would he choose to do what he did? 
I mean, what husband does that? 
If you feel this way, why would you drug me and rape me repeatedly?  Why would you do that?’

“ â€˜Question:  When you read it, you felt the comments, the
sentiments that he was expressing in this letter were sincere.  You felt that he really meant it?’

“ â€˜Answer:  In—yes, I do feel that he meant it.  But I also, you know—they’re words.  And actions and words obviously I had been violated
and humiliated and totally betrayed by this person who wrote this, so it
doesn’t make sense to me.’

“Was that honest
testimony that you gave me?

“Answer:  Yes.”

Rick also
complains that Rinske’s professional witnesses were encouraged to offer testimony
that Rick raped Rinske.  For example, he
quotes testimony by Jan DiSanto, the couple’s marital counselor who testified
on Rinske’s behalf, in which she stated that it “was a horrible betrayal [for
Rinske] to then be drugged and raped by” Rick. 
He cites Rinske’s cross-examination of Dr. Diane Everstine, who
offered testimony about the development of posttraumatic stress disorder in
victims of nonconsensual sex.  And he
cites Rinske’s cross‑examination of Dr. John Barry concerning the
effects of Ambien and wine on a person. 
This evidence, Rick claims, all ran counter to the trial court’s
admonition that the attorneys not raise the rape allegations because they were
not relevant to the elements of Rinske’s section 1708.6 claim.  Rick’s argument fails for four reasons.

First,
significantly missing from any of the referenced testimony is a timely
objection by Rick’s counsel.  It is
well-established “that in order to raise the point of erroneously admitted
evidence on appeal, there must be a showing that a timely objection had been
made at trial directing the attention of the trial court to the particular
evidence sought to be excluded.”  (>Dugar v. Happy Tiger Records, Inc. (1974)
41 Cal.App.3d 811, 817; accord, Stenseth
v. Wells Fargo Bank (1995) 41 Cal.App.4th 457, 462 [“[I]n order to raise
the issue of the admissibility of evidence, a party must make a timely
objection on a specific ground.”]; People
v. Smith (1986) 180 Cal.App.3d 72, 79 [“An appellate court is precluded
from reviewing questions concerning the admissibility of evidence for the first
time on appeal.”].)  This rule finds
support in Evidence Code section 353, which provides, in pertinent part:  “A verdict or finding shall not be set aside,
nor shall the judgment or decision based thereon be reversed, by reason of the
erroneous admission of evidence unless: 
[¶] (a) There appears of record an objection to or a motion to
exclude or to strike the evidence that was timely made and so stated as to make
clear the specific ground of the objection or motion. . . .”  Here, Rick identifies no timely objection or
motion to strike, nor did our review of the record reveal any.  He thus failed to preserve this claim for
appellate review.

In reply, Rick
suggests that the trial court exempted his counsel from the universal
obligation of objecting to improper evidence at the time it is offered.  As he explains it, at a pretrial conference
on motions in limine, Rick’s counsel objected to witnesses using the word
“rape.”  According to Rick, “the Court
explicitly stated that there would be, in essence, an ongoing objection to any
inflammatory language.  It was further
stated that an objection to each instance would not be required.”  Rick’s interpretation of the actual exchange
is fanciful at best. 

At a pretrial conference
on June 30, 2011, the court ruled on the written motions in limine, after which
counsel for Rick advised that he had two additional motions.  In the first, he sought “to preclude
plaintiffs’ counsel in questioning a witness in argument and opening statement
to describe the conduct that is now at issue as a rape,” complaining “that
would be terribly unfair because they’ve dismissed the rape cause of
action.”  The following colloquy ensued:

“THE COURT:  I think rape calls for a legal
conclusion.  Sustained.  I wouldn’t allow that.

“MR. SMITH [RICK’S
COUNSEL]:  Right.  Now, I understand, your Honor, just in that
regard, that there’ll be testimony from witnesses that we’ve learned that the
word was used.  And, of course, that’s
legitimate, fair game.  But counsel may
not—and I think you’ve already ruled and I understand that.  But if a witness is talking about a prior
statement in which the words were used, I mean, that’s fine.  They can talk about it as long as it wasn’t
some opinion of theirs or conclusion of theirs, but thank you for the ruling in
that regard.  [¶] . . .
[¶]

“Yes.  And these comments—included in that, these
comments about using a penis as a weapon, which is an acronym for rape.  Not an acronym, I mean a—it’s basically the
same thing.  None of that hysterical kind
of commentary should occur in this trial pursuant to the Court’s ruling.

“THE COURT:  Well, there’s always argument as you know,
Mr. Smith, and we get to sometimes argue our cases and words are used to define
instruments of violence.  And I’m not
going to preclude people in that regard, but certainly when we do our opening
statements and talk about what the evidence will show and when we interrogate
witnesses. . . and we question witnesses, legal terms, they call for
legal conclusions and would not be appropriate. 
Questions like rape—[¶] . . . [¶] obviously are legal
conclusions and not factual issues.  So I
understand that.”

The issue was
again touched upon the following day when the court considered Rick’s motion to
preclude Rinske’s counsel from referring to Ambien as a “date rape like
drug.”  This exchange ensued:

“THE COURT:  I’ve been doing criminal law for over 20
years, I’ve never heard of anyone dropping an Ambien in someone’s cocktail as a
date rape drug.  There are other drugs,
but I’m surprised at that one.  I mean,
we’ll see what the experts have to say, but you know, again, words are
important.  You can explain what someone
does.  We don’t have legal conclusions
nor do we have, you know, words that are particularly inflammatory.  You know? 
I think that’s just how we conduct business. 

“We don’t call a
murderer a murderer until he’s convicted of a murder.  We don’t call a rapist a rapist until he is
convicted of a rape.  That’s how we
proceed.

“Date rape-like
drug sort of creates connotations that have no business in a court of law.  It is what it is.  And, thus, it is Ambien and if it is
allegedly dropped into someone’s drink and then what happens thereafter is what
we’re talking about here, we don’t need to create monikers to somehow inflame a
jury.  That’s the only purpose for
this.  So the motion is granted.

“MR. EMANUEL
[RINSKE’S COUNSEL]:   I think the Court
made its ruling yesterday that counsel is not to use the word ‘rape.’  I have no intention of doing so, but I can,
again, advise the Court that the experts on both sides have cited literature
and have used this language because Ambien, like Rohypnol, which is often
referred to as ‘roofies,’ is basically in the same classification of controlled
substance.  So I think we’re just in a
situation where a clinical phrase might be different than a legal one.  I know not to use the term.

“THE COURT:  And the question is was it done?  And was it done without consent?  And what are the damages?  I mean, those are the simple aspects of the
case.  So, you know, I admonish both
sides from—and I will sui sponte preclude you from going into undue
inflammatory remarks.  I won’t need an
objection and that goes for both sides. 
If both sides in any way get out of control during the trial that I view
of being over the top, so to speak, you know, approaching witnesses without
permission, you know, becoming a little too caustic with witnesses, you will be
admonished.  And these are the kinds of
issues as to that.  So that’s granted.  I see that as quite appropriate.” 

Neither of the
foregoing exchanges can reasonably be construed as granting Rick’s counsel a
wholesale exemption from the obligation to timely object to evidence that he
considered improper.  This conclusion is
underscored by the court’s minutes of the June 30 hearing:  “Defense counsel moves the Court for an order
precluding Plaintiff’s counsel from questioning witnesses about a ‘rape’.  The Court states that the term ‘rape’ would
be precluded and the Court would sustain
the Defendant’s objection if that term is used.”  (Italics added.)  And, in fact, the court even admonished
Rick’s counsel during trial that certain evidence came in because counsel did
not object to it:  “The problem I have is
I can’t sustain my own objections on a regular basis.  You allowed this.  You didn’t object to it, and perhaps you
should have . . . .” 
Counsel was unquestionably on notice of his obligation to object at the
time Rinske’s counsel introduced what he considered to be improper evidence.

In further
disputing that he forfeited this argument by failing to timely object, Rick
also argues that forfeiture does not result when the improper admission of
evidence results in a miscarriage of justice such that the judgment should be
set aside.  Rick’s cited authority does
not support a conclusion that a miscarriage of justice occurred here.

Second, Rick’s
argument that the jury improperly heard testimony about rape fails because his
counsel acknowledged that, in certain contexts, such testimony was “legitimate,
fair game.”  Despite this concession,
Rick makes no effort here to advise when such testimony was improper and when
it was “legitimate, fair game.”

Third, Rick has
waived this argument by introducing evidence concerning rape himself.  As noted above, Rick complains that Rinske’s
counsel read a passage of her deposition testimony in which Rinske wondered why
Rick would drug and rape her if he loved her. 
Quite shockingly, while Rick accuses Rinske’s counsel of improperly
putting this evidence before the jury, this testimony was in fact introduced by
Rick’s own counsel during his
cross-examination of Rinske.  We hope
this false accusation resulted from an innocent error by Rick’s appellate
counsel, rather than a deliberate attempt to mislead this Court.href="#_ftn7" name="_ftnref7" title="">[7]  But, regardless, the fact remains that Rick’s
counsel put this evidence before the jury. 
He cannot now be heard to complain about it.

Lastly, we note
that an appellant arguing on appeal that the jury heard improper evidence must
not only show that the evidence should not have been admitted, but also that he
or she was prejudiced by the evidence. 
Rick does not do so.

E.    Rick Forfeited His Argument
That the Trial Court Erred In Failing to Give a Limiting Instruction Regarding
Rape Testimony

In a corollary to
the above argument, Rick complains that once the improper testimony concerning
rape came in, the trial court should have instructed the jury that such
testimony “could not properly be considered, as [it did] not relate to any
statutory element” of a domestic violence claim.  He claims that such testimony, which only
related to claims that had been dismissed, “obfuscated matters” and likely
misled the jury.  As held above, Rick
forfeited any claimed evidentiary error by failing to object to the
testimony.  He cannot now circumvent that
error by framing it as an instructional error. 
More significantly, Rick’s argument ignores the elephant in the room:  he never requested such an instruction.

It is well
established that “ â€˜ â€œ â€˜In a civil case, each of the parties
must propose complete and comprehensive instructions in accordance with his [or
her] theory of the litigation; if the parties do not do so, the court has no
duty to instruct on its own motion.’ â€ â€™ â€  (Metcalf
v. County of San Joaquin (2008) 42 Cal.4th 1121, 1130-1131; >Transport Ins. Co. v. TIG Ins. Co.
(2012) 202 Cal.App.4th 984, 1008; Null v.
City of Los Angeles (1988) 206 Cal.App.3d 1528, 1534-1535; Eisenberg et
al., Cal. Practice Guide:  Civil Appeals
and Writs, supra, §§ 8:266, p. 8‑170.)


Rick seeks to
avoid application of this rule by suggesting that the court had an affirmative
duty to properly instruct the jury even in the absence of a specific
request.  This principle, however,
applies only in criminal cases, as illustrated by the fact that Rick relies on
criminal cases to support his argument. 
(See, e.g., People v. Martin (2000)
78 Cal.App.4th 1107, 1111; People v.
Gerber (2011) 196 Cal.App.4th 368, 390.) 

In his rely brief,
faced with Rinske’s response pointing out that he was advocating a rule
applicable only in criminal cases, Rick seeks support from our recent opinion
in Veronese v. Lucasfilm, Ltd. (2012)
212 Cal.App.4th 1 (Veronese),
claiming it “addressed the question of whether the failure of a party to
request a particular jury instruction necessarily waives the ability to raise
that issue on appeal.”  According to
Rick, we held that “While such failure normally would create a barrier in the
appellate court, there is an exception when the trial court fails to properly
instruct on the material issues and legal principles necessary for the jurors
to understand and therefore follow the applicable law.”  While there may exist such an exception, it
does not apply here.

In >Veronese, supra, 212 Cal.App.4th at p.
28, we considered, as pertinent here, the court’s failure to instruct the jury
on plaintiff’s claim for failure to prevent discrimination, a claim on which
the jury returned a verdict for plaintiff despite the lack of an instruction on
that cause of action.  Apropos to this
issue, we stated:  “The trial court must
instruct on the law applicable to the facts developed by the evidence and every
reasonable theory that the evidence supports. 
[Citations.]  As the Supreme Court
has recognized, ‘there ordinarily is no duty to instruct in the absence of a
specific request by a party; the exception is a complete failure to instruct on
material issues and controlling legal principles which may amount to href="http://www.mcmillanlaw.com/">reversible error.  [Citations.]’ [Citation.].)  [¶] Witkin distills the rule this
way:  ‘[I]t is the duty of the court to
see that jurors are guided on controlling legal principles, and the complete
failure to instruct properly on a basic issue may be reversible error.  [Citations.].’ (7 Witkin, Cal. Procedure (5th
ed. 2008) Trial, § 261, pp. 315–316.).” 
We then concluded that under the facts of that case, the absence of an
instruction on failure to prevent discrimination was indeed error.  (Veronese,
supra, 212 Cal.App.4th at pp. 28-29.) 
This case, however, is different. 


First, and most
significantly, in Veronese, the court
was prepared to give the instruction at issue but was advised—erroneously—that
it had already read it.  (>Veronese, supra, 212 Cal.App.4th at p.
28.)  Here, Rick never requested an
instruction regarding the rape testimony. 
Moreover, the instruction omitted in Veronese
went to the very elements of the cause of action.  Here, as Rick concedes, the jury was properly
instructed on the elements of a domestic violence claim.  We thus cannot see how this case falls within
an exception where there “is a complete failure to instruct on material issues
and controlling legal principles . . . .”  (Ibid.)

But, once again,
even if we were to overlook Rick’s forfeiture of this argument and were to
agree with him that there had in fact been error, we would still reject his
argument.  This is so because reversal
for instructional error is only warranted where the error resulted in a
miscarriage of justice.  (>Soule v. General Motors Corp. (1994)
8 Cal.4th 548, 580 (Soule).)  In other words, to merit reversal Rick would
have to demonstrate that, absent the alleged error, it is “reasonably probable”
that the jury would have reached a different result.  (Cassim
v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800.)  This showing requires an analysis of several
factors, which the court in Soule identified
as including the state of the evidence, the effect of other instructions, the
effect of counsel’s arguments, and any indication by the jury itself that it
was misled.  (Soule, supra, 8 Cal.4th at pp. 580-581.)

While repeatedly
asserting that he suffered “prejudice”—indeed, “extreme prejudice”—Rick makes
no effort in his opening brief to actually demonstrate
how he was prejudiced, to address the factors outlined in Soule.  By failing to present
this argument in his opening brief, it, too, has been forfeited.

Lastly, we note
that Rick does not even suggest how the jury should have been instructed.  Since he never requested a limiting
instruction, he asks us to rule on this issue in a vacuum.  We decline to do so.

F.     Rick Forfeited His Argument
That the Trial Court Erred In Allowing Testimony Regarding the PTSD Rinske
Suffered

Rick also suggests
that evidence regarding posttraumatic stress disorder was irrelevant to
Rinske’s domestic violence claim because PTSD does not constitute bodily
injury, and he complains that the trial court “did nothing to stop” Rinske from
offering testimony regarding the disorder. 
He further complains that the trial court failed to “clarify with the
jury” that “allegations of PTSD cannot satisfy the bodily injury required under
Section 1708.6.”  Again—and without
deciding whether the evidence was properly admitted—Rick neither objected to
the testimony nor requested a limiting instruction, so he cannot now be heard
to complain.

In sum, we reject
all of Rick’s arguments and affirm the judgment.  We thus turn to the issues presented by
Rinske’s appeal, which arose following posttrial motions.

>DISCUSSION—RINSKE’S APPEAL

>A. 
Rinske’s Memorandum of Costs

On August 19,
2011, Rinske filed a memorandum of costs seeking $155,622.  The costs were itemized as follows:  $555 for filing and motion fees; $5,941 for
jury fees; $23,962 for depositions; $454 for service of process; $55 for attachment
expenses; $86,297 for expert witness fees; $155 for blowups of trial exhibits;
$2,000 for court reporter fees; and $36,203 for “other.”

Attachments 13 and
13A detailed the expenses comprising the “other” category.  They included $1,574.72 for “records obtained
through subpoena & authorizations”; $3,763.53 for copies of videotaped
depositions; $340 for family law court transcripts; $36.93 for two books by
defense expert Diana Everstine, M.D. purchased from Amazon.com; $955.29 for
mail and messenger deliveries; $3,025.50 for Gregg Oglesby Investigations,
Private Investigation Services; $1,441.40 for travel expenses for witness
Eileen Blocki; $24,790.85 for National Jury Project/West; and $275 for a jury
verdict search.  Aside from the
expenditures for records obtained through subpoenas, copies, and mail and
messenger deliveries, Rinske sought these “other” costs pursuant to section
1708.6.

On September 1,
2011, Rick filed a motion to tax costs. 
Arguing that the vast majority of the costs Rinske sought to recover
were not reimbursable, Rick requested that the court tax $142,307 of the
$155,622 she was seeking, specifically challenging five categories of
costs. 

As to deposition
expenses, Rick argued that $17,280—Rinske’s expenditure for Rick’s and her depositions—should
be reduced by 75 percent.href="#_ftn8"
name="_ftnref8" title="">[8]  He reasoned that because Rinske dismissed
three of her four causes of action, only prevailing on her domestic violence
claim, she should only recover 25 percent of the deposition costs, or $4,320.

Rick argued that
all of the $86,297 requested for expert witness fees should be disallowed.  He noted that Code of Civil Procedure section
1033.5 provides for the recovery of expert witness fees only when the expert
was “ordered by the court” or when the fees are expressly provided for by
law.  None of Rinske’s experts was court
ordered.  Section 1708.6 authorizes
“general damages, special damages, and punitive damages,” as well as “equitable
relief, an injunction, costs, and any other relief that the court deems proper,
including reasonable attorney’s fees.” 
It does not, Rick noted, provide for expert witness fees.

Of the $454 Rinske
sought for service of process, Rick sought a reduction of $174, the amount
Rinske incurred to serve three witnesses who were neither deposed nor called as
witnesses at trial.  Rick also argued
that Rinske’s request for $2,000 for court reporter fees should be disallowed
because there was no showing that the trial court reporter was necessary to the
litigation.

Lastly, Rick
sought to tax Rinske’s claim for “other” expenses, seeking a reduction of
$29,257.75 of the $36,203 requested.  He
argued that most of the expenses were not authorized as recoverable expenses
and many were, in fact, expressly disallowed by Code of Civil Procedure section
1033.5, subdivision (b).  The largest
portion of this category was jury consultant fees paid to National Jury
Project/West and investigative expenses paid to Gregg Oglesby Investigations
($24,790.85 and $3,025.50, respectively), both of which Code of Civil Procedure
section 1033.5, subdivision (b)(2), exclude except when expressly
authorized by law.  Rick also argued that
$340 for family law court transcripts should be taxed because they were not
court ordered, and that $275 for a jury verdict search and $1,441.40 for Eileen
Blocki’s travel expenses were also noncompensable.  

On September 19,
2011, Rinske filed opposition to Rick’s motion to tax costs.  She disputed Rick’s claims that certain of
her requested costs were unauthorized, contending that costs not specifically
provided for under Code of Civil Procedure section 1033.5 were authorized
by section 1708.6, subdivision (c), which allows for “any other relief that the
court deems proper.”  She also disputed
that the costs should be apportioned, arguing that the facts supporting the
successful domestic violence claim were the same as those supporting the
dismissed causes of action. 

Rinske then sought
to justify each requested expenditure. 
She claimed the fees for service of process were necessarily incurred
because the witnesses were evading service, and the court reporter fees should
be allowed because Rinske was obligated to pay the court reporter at trial.

As to the expert
witness fees, Rinske argued that section 1708.6 authorized the court to award
any other relief that it deemed proper. 
Rinske was required to retain experts to refute the evidence presented
by Rick’s experts, and reimbursement for those fees was necessary to make her
whole, as contemplated by the statute. 
And concerning the experts who did not testify, they nevertheless
provided expert advice.

Concerning item
13—additional expenses—Rinske argued the necessity of each expense:  the jury consultant was “critical to the
case,” the investigator was necessary to interview witnesses who may have had
relevant information about Rick, and Eileen Blockee was an out-of-state witness
who may not have been able to testify had her airfare not been covered.

>B. 
Rinske’s Motion for Attorney’s Fees

Meanwhile, on
September 8, 2011, Rinske filed a “Motion for Attorney’s Fees and Costs Not
Recoverable under CCP §1033.5.”  The
motion was based on section 1708.6, subdivision (c), which provides as
follows:  “The court, in an action
pursuant to this section, may grant to a prevailing plaintiff equitable relief,
an injunction, costs, and any other relief that the court deems proper,
including reasonable attorney’s fees.” 

Rinske requested
an award of “reasonable attorney fees of $455,600 plus an enhancement
multiplier of 1.5 for attorney time,” as well as an additional $10,000 for the
preparation of the fee motion.  According
to Rinske, under discretionary fee shifting statutes such as section 1708,
subdivision (c), “the prevailing plaintiffs in public interest litigation are
ordinarily entitled to reasonable attorneys fees, and fees may be denied only
when ‘special circumstances would render an award unjust.’ â€  She argued that this standard should be
applied here, because she “pursued her claim under Civil Code
section 1708.6 to vindicate a very important statutory right to be seek [>sic] redress from the injuries suffered
at the hands of her former husband in violation of the state’s domestic
violence laws.”  Further, Rinske
submitted that awarding her attorney’s fees would serve the legislative purposes
of section 1708.6 which, according to the statute itself, are “to enhance the href="http://www.fearnotlaw.com/">civil remedies available to victims of
domestic violence in order to underscore society’s condemnation of these acts,
to ensure complete recovery to the victims, and to impose significant financial
consequences upon perpetrators.”

Rinske’s motion
also argued that she was entitled to her costs for experts and
investigation.  Conceding that Code of
Civil Procedure section 1033.5, subdivision (b)(1) expressly excludes recovery
of “ â€˜[f]ees of experts not ordered by the court’ ‘except when expressly authorized by law,’ â€ Rinske submitted
section 1708.6 authorized them for successful domestic violence plaintiffs
because, as noted, it was designed to enhance the remedies available to victims
of domestic violence and to ensure their complete recovery.

On September 19,
2011, Rick filed opposition to Rinske’s fee motion.  He denied that the litigation involved the
enforcement of an important right or that it conferred a significant benefit on
the general public or a large class of individuals.  Alternatively, Rick argued that there were
special circumstances rendering a fee award unjust.  Specifically, he described Rinske’s conduct
in the litigation as “outrageous.”  Her
complaint, he said, accused him of 15 years of abuse, charges he had to defend
himself against, only to have her dismiss three of her claims on the eve of
trial, leaving only a single cause of action for domestic violence stemming
from the two, as he put it, “Ambien incidents.” 
Further, he claimed he repeatedly attempted to settle both Rinske’s
civil case and their marital dissolution action, but Rinske refused, adhering
to manifestly unreasonable settlement demands far exceeding what she was
ultimately awarded by the jury.

If the court was
inclined to award fees, however, Rick urged the court to apportion them.  He reasoned that Rinske’s attorneys invoiced
all the time they spent litigating the case, while Rinske only prevailed on one
of her four claims.  Rinske’s motion
failed to make any attempt to apportion the fees which, Rick contended,
justified denial of her request in its entirety.  At most, she should be awarded 25 percent of
the requested fees.

Rick also
submitted that Rinske’s lodestar calculation was unreasonable.  She requested hourly rates of $400 and $500
for the two attorneys who represented her, which Rick argued should be reduced
to $100 and $250 per hour, the rates his attorneys charged him.  Further, Rinske was not entitled to an
enhancement because none of the factors warranting a multiplier existed.

Lastly, Rick
disputed Rinske’s entitlement to expert fees. 
He noted that she relied on a case involving the award of expert fees
under section 1794, which provides for the recovery of “costs and
expenses.”  Section 1708.6 only provides
for the recovery of “costs.” 
Additionally, the amount of her request was unreasonable, since it sought
fees for experts who never testified.

On September 23,
2011, Rinske filed a reply in support of her fee motion.  In short, she argued that Rick failed to
demonstrate the existence of special circumstances justifying denial of her fee
request; there was no basis for apportioning fees; and her lodestar calculation
and enhancement request were reasonable.

C.  Hearing on Rinske’s Fee Motion and Rick’s
Motions to Tax Costs

On September 30,
2011, Rinske’s motion for attorney’s fees and Rick’s motions to tax costs came
on for hearing, as did Rick’s motion for new trial.href="#_ftn9" name="_ftnref9" title="">[9]  Rick’s counsel argued first and began by
arguing—yet again—that Rinske’s “put one over on the jury,” convincing them to
find for her on her domestic violence claim when she had really alleged sexual
battery.  In light of that, Rick urged
the court to “have the courage to say no” and grant his motion for a new
trial. 

Turning to the fee
motion, Rick’s counsel disputed Rinske’s version of settlement discussions that
portrayed her as making reasonable settlement demands while he responded with
only unreasonable offers.  In fact,
according to Rick’s counsel, Rinske demanded nine million dollars, ultimately
receiving less than five percent of that from the jury.  And, counsel argued, Rick had offered her
$151,000 plus her attorney’s fees, which was equivalent to what Rinske claimed
she would have settled for.

After Rick’s
counsel made a few additional arguments directed exclusively at the motion for
new trial, argument shifted to Rinske’s counsel.  He began by disputing Rick’s version of the
settlement negotiations, contending that Rick’s offer of $151,000 was nothing
more than a nuisance value offer, especially considering the horrific events to
which he subjected Rinske. 

The court
interrupted Rinske’s counsel to say this: 
“You make these arguments and we’re heard these before, and as I said
numerous times, someone failed to pursue the case within the statute of
limitations to make this a sexual battery or other crime under the Civil Code,
but instead waited until that time had passed to file the charges or the
allegations and took this case and argued it was a domestic violence case,
which was, as I said before, a close call under the law . . . .
[¶] . . . [¶] One of the problems that continues on this case that
bothers me is the reality that, you know, you could be standing before me with
four causes of action and make your arguments like a shining knight saying this
was what was done and this is what needs to be taken care of; however, you’re
not.  Three causes of action went down at
your own motion to dismiss and you were left basically arguing a domestic
violence case with facts such as these, which puts you in a much more difficult
position.  You wouldn’t have had such a
difficult position had the case been filed just weeks before.  [¶] And so with that said, the righteous
indignation may well be there for you to argue in terms of people to hear, but
in terms of the law and the requirements under the law, we tried this as a
domestic violence case and that was a difficult process I thought.  Candidly a case that was a close call when
[Rick] brought his motion for a directed verdict.”

Rinske’s counsel
briefly disputed the court’s characterization of the case, and the court
continued:  “What I’m saying is the law
and you tried this as a domestic violence case, not a sexual battery case.  And regardless of what the facts are, it must
fly within the context of the cause of action that is viable.  And there was only one viable cause of
action.  And that’s not because of—well,
that’s because of not pursuing the case prior to the statute of
limitations.  And so when one sits on
their hands, so to speak, and not proceed, that leads [sic]  you with fewer causes
of action.  The facts don’t change, but
the remedies do.  And that’s one of the
issues that I grapple with in this case. 
[¶] I’m not saying that I’m in any way siding with one side or another
or feel that these facts are not egregious or any of that, what I’m saying is
because of someone not pursuing this when this was a viable case, you’re down
to a domestic violence case.  And this is
what I said from the beginning, you’re down to a domestic violence case that we
can, you know, raise the flag and use the language of . . . rape
and words such as that, but the problem was, for you, was this was a domestic
violence case, it wasn’t a sexual battery case. 
It was the emotional infliction of distress, I mean, infliction of
emotional distress.  It was one cause out
of four that finally made it to the jury. 
And the jury did reach a verdict and they reach a rather high verdict as
I’ve already indicated, but that being said, now you need to address the
issues . . . why I should grant attorney’s fees and why I
shouldn’t grant the motion to tax costs?” 


After Rinske’s
counsel briefly responded, the court turned to section 1708.6, observing that
under the statute, it was not compelled to award attorney’s fees and that its
“issue” was whether Rinske would get any fees at all:  “I thought this case was over‑litigated.  I thought it was over-litigated by both
sides.  [¶] I like what one juror had to
say.  She said—this was (Juror No. 12)
who said, you know, ‘The fact that the parties involved wanted to air their
laundry is their business.’  It was not a
case that truly, I think, satisfied any governmental need or necessity to be
tried.  It was a particularly—it was
really just a family law case gone bad with two people that don’t like each
other and continue to handle this in family law.  [¶] There were tactics in the trial that I
thought were interesting. . . . 
[¶] I mean, there were a lot of issues in this by both sides.  There were some antics that went on; I didn’t
like them.  But that being said, now I
have to decide this issue of attorney’s fees. 
So tell me why I should award attorney’s fees.”

As Rinske’s
counsel began to reply with an acknowledgment that fees were discretionary, the
court interrupted, stating, “You agree I have discretion; I don’t have to award
a nickel.”  Rinske’s counsel responded
affirmatively, and the court continued: 
“You have to understand, we deal with domestic violence everyday in this
court.  And I mean domestic violence
where people are being beaten, struck, hit, stabbed, maimed, gouged, and we put
those poor people into shelters to protect them from their aggressors.  These poor victims, we take care of them and
we counsel them, we find them places that they can go rather than have them
stay in their cars overnight and hide from their aggressors.  All right? 
Those are domestic violence cases of which you speak.  This is slightly different.”

Rinske’s counsel
disagreed, contending that what Rinske suffered at Rick’s hands “is up there
with any of them.”  The court countered,
“I’ll just say this one more time:  This
barely made it as a domestic violence case. 
I almost granted the directed verdict. 
Frankly, you could have tried it as a sexual battery.  You could have tried it under those