Ng v. Chiu

Filed 3/24/09 Ng v. Chiu CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

I. INTRODUCTION

After extended litigation involving a temporary restraining order (TRO) secured by respondent Ng against his former girlfriend, appellant Chiu, and extendedand vigorously opposedefforts by respondent to make that order permanent, respondent opted to dismiss his petition without prejudice. Appellant then filed a memorandum of costs, as to which respondent filed a motion to tax. Appellant also filed a motion asking for an award of attorney fees. After a hearing, the trial court struck appellants cost bill and denied her attorney fees pursuant to Family Code section 6344, subdivision (a) (section 6344(a)). Finding no abuse of discretion in those rulings, we affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

Although both parties devote many pages of their briefs to the story of the break-up of two law students (and later lawyers) who had a romantic relationship and lived together for a little over a year, we will attempt to condense that regrettable tale to far fewer words.

Appellant and respondent met as students at Hastings College of the Law and began dating in the summer of 2005, after appellants first year and respondents second year of law school. In the fall of that year, appellant moved into respondents San Francisco home. In December 2006, they began having problems (appellants terminology) due, according to respondents recitation, to appellants use of ecstasy and cocaine which made her highly emotional and led to her slapping him on several occasions. The couple decided to break up in December 2006, but appellant continued to live in respondents house because she allegedly had no place else to live. During this period, they continued to have an on again off again sexual relationship.

However, because of their continuing relationship problems, they agreed that appellant would move out of respondents house on April 1, 2007; they even scheduled movers for that event. In the meantime, respondent had met another woman, Constance Kim, who is now his wife (Ms. Ng.). They met in March 2007 and were married three months later, in June 2007. Between those dates, respondent frequently spent the night at Connies apartment in San Jose, which then led to the events of March 31-April 1, 2007,[1] concerning which the parties filed substantially conflicting sworn statements. According to respondents much more-detailed statement, while in San Jose, he received two telephone calls from people who told him that appellant had called and told them that she was smashing things at my house with a baseball bat. As a result of this information, respondent, Ms. Ng, and Ms. Ngs brother drove to respondents house in San Francisco, arriving about 12:30 a.m. on April 1.

According to respondent, appellant was in that house, and also in it was a smashed glass coffee table and a baseball bat which, according to respondent, appellant then used to smash a mirror on the master bedroom wall, all the time screaming at him for his infidelity regarding Ms. Ng. According to respondent, the episode continued with appellant almost smashing a TV set with the bat, grabbing and smashing respondents cell phone, respondent grabbing the bat from her, appellant biting respondent and drawing blood, and appellant then retaking the bat and going outside toward the car containing Ms. Ng and her brother, threatening to hit Ms. Ng and the car with the bat.

Appellants much briefer (less than a page) description of these events states that respondent arrived at his house noticeably drunk, and contains many other differences with respondents version. But, in it, she does not deny wielding a baseball bat inside the house, breaking the glass coffee table or respondents cell phone, threatening to do the same to the mirror, and biting respondent.

There were also significant differences between the parties respective allegations regarding what happened in the moments after they both exited the house and went toward the car, including who called the police, who caused both of them to get locked out of the house, etc. These conflicts continued regarding a variety of events between April 1 and June 25, when respondent applied for and obtained a TRO under the Domestic Violence Prevention Act (DVPA). According to respondent, during that period: appellant called him literally scores of times, sometimes as often as 12, 13, or even 20 times a day; placed numerous calls to Ms. Ng during that same period; was drunk and threatening to cut herself with a meat cleaver when respondent found her still in his house on April 14; climbed into his bathtub fully clothed and drinking wine on the same day; had to be taken to a mental hospital by the San Francisco police that day, in the process admitting to the police that she had taken both ecstasy and cocaine the previous night, and continued trying to make telephone calls to both respondent and Ms. Ng after, finally, moving out of respondents house on April 15. Some of these attempted calls allegedly continued into September.

Appellants version of the events of this period was again very abbreviated. According to it: she and respondent briefly reconciled after the March 31-April 1 incident; she was devastated to learn on April 14 that respondent was still planning to marry Ms. Ng, but did not threaten to harm him that day; and had not contacted respondent since May 7 or Ms. Ng since April, attaching as support for her abbreviated statements, copies of her cell phone records. However, nothing in appellants declarations denied appellants and Ms. Ngs versions of the significant events of April 14, described above.

The strong disagreements between the parties continued after the issuance of the TRO on June 25,[2] but they mainly took the form of very contentious discovery and pre-hearing procedures.[3] Thus, although the matter was originally set for hearing regarding the issuance of a permanent restraining order on July 18, it was continued until September 19 at the request of appellants counsel and then to September 26 at the request of respondents new counsel. In the interim, appellants counsel filed extensive discovery requests and noticed the depositions of respondent and Ms. Ng for September 19, a date later changed to September 24. It turned out that this date would not work for the parties to be deposed, so respondents counsel got an oral agreement from one of appellants attorneys to move the depositions to October 3. The same attorney then allegedly denied any agreement for a delay in the depositions and demanded that they take place on September 24. They did not, because of the unavailability of respondent and his wife, but a court reporter nevertheless appeared at appellants counsels office on that day, a transcript was made of the non-depositions, and this cost is one now being claimed by appellant.

After a hearing before Commissioner Hewlett of the San Francisco Superior Court on September 25, the depositions were ordered to take place on the date offered by respondents counsel, i.e., October 3. Appellants counsel also filed a motion for sanctions, which Commissioner Hewlett said he would not grant if the depositions proceeded on October 3, which they did.

The hearing on the issuance of a permanent restraining order was reset for October 31 as a short cause matter; appellant submitted extensive written evidence in opposition to the motion two days earlier, i.e., on October 29. As a result of this, and continued disagreement between the parties respective counsel, the matter was taken off the short-cause calendar and reset for a long-cause hearing on December 21. In the interim, some settlement discussions apparently took place between counsel, but were unsuccessful; the parties proceeded to file declarations and attached records, including voluminous cell phone records.

At the hearing on December 21, the trial court urged the parties to resume settlement discussions, as it estimated the hearing could take as long as two or more days. After discussions in chambers, respondent and his counsel agreed to a resolution whereby they would dismiss the petition without prejudice and not go forward with the hearing to make the restraining order permanent. The trial court characterized this resolution as an agreement, a term with which neither party disagreed. There was, however, clear disagreement as to whether there was or was not a prevailing party in the proceeding.

Consistent with the statements of respondents counsel, a dismissal without prejudice was filed on December 31.

On January 22, 2008, appellant filed a memorandum of costs, as to which respondent filed a motion to tax on February 11, 2008, and an amended motion to the same effect on February 20.

On February 29, 2008, appellant filed a motion for the award of attorney fees, to which respondent filed an opposition on March 19, 2008. Both motions were heard by the trial court on April 3, 2008. The court indicated that its tentative ruling was to grant respondents motion to deny appellant her costs and to deny appellants motion for attorney fees. It then invited and heard argument from both counsel and concluded by adhering to its tentative ruling. Formal orders on both issues were entered on June 9, 2008.

Appellant filed a timely notice of appeal on July 23, 2008.

III. DISCUSSION

A. Our Standard of Review.

Appellant asserts that [t]he propriety of award or denial of attorney fees presents a legal question which must be reviewed de novo. This is plainly wrong. Our Supreme Court made the applicable standard of review quite clear in Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175 (Connerly), where it stated: The proper standard of review was set forth in Carver v. Chevron U.S.A., Inc. (2002) 97 Cal.App.4th 132, 142: On review of an award of attorney fees after trial, the normal standard of review is abuse of discretion. However, de novo review of such a trial court order is warranted where the determination of whether the criteria for an award of attorney fees and costs in this context have been satisfied amounts to statutory construction and a question of law. (See also, among many other appellate cases holding to the same effect, Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 148.)

The only case cited by appellant in support of her de novo review argument is Olson v. Cohen (2003) 106 Cal.App.4th 1209, 1213 (Olson), a case where the trial court had sustained a demurrer to an action brought under the unfair competition law, i.e., Business and Professions Code section 17200 et seq. All the Olson court said on the issue involved here was: The propriety of awarding attorney fees presents a legal question which is reviewed de novo. (Olson, supra, 106 Cal.App.4th at p. 1213, emphasis added.) The point that court was making in that sentence is clarified by the only case it cited in support of its ruling, Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1132-1133. In that case, Division Four of this District stated: The determination of the statutory basis for an attorney fees award presents a legal issue for us to determine anew on appeal, regardless of the trial court ruling. (Emphasis supplied.) Further clarifying the holding in Olson is the recent case of Jaffe v. Pacelli (2008) 165 Cal.App.4th 927, 934, where one of our sister courts wrote: The usual standard of review for an award of attorney fees is abuse of discretion. [Citations.] Here, however, the issue is whether the trial court had the authority pursuant to [Code of Civil Procedure] section 685.040 to issue such an award . . . . This is a legal issue which we review de novo. [Citations.] Cited in support of these principleswere the Connerly and Olson cases. (Ibid.)

To go back to the statements in Olson and Akins, here both the propriety of granting attorney fees and the statutory basis therefor is provided by section 6344(a). That statute governs the award of attorney fees and costs in actions, such as the present one, brought under the DVPA: After notice and hearing, the court may issue an order for the payment of attorneys fees and costs of the prevailing party. ( 6344(a), emphasis added.)

As this court explained rather thoroughly in Oriola v. Thayer (2000) 84 Cal.App.4th 397, 404-406 (Oriola), the statutes that now comprise the DVPA were originally enacted in 1979 as part of the provisions of the Code of Civil Procedure governing temporary restraining orders generally. (Oriola, supra, at p. 405.) The general anti-harassment provision of that code is now section 527.6, and the subdivision of it governing the award of costs and attorney fees also provides that the court may award such to the prevailing party. (Code Civ. Proc.,  527.6, subd. (i).)

Under that general anti-harassment statute, two cases have held that, since the term prevailing party is not defined therein, a trial court may refer to other provisions of the Code of Civil Procedure, specifically section 1032, subdivision (a)(4) (CCP section 1032(a)(4)), the section of that code regarding the recovery of costs, and hold that, under it, the party in whose favor a dismissal is entered may be designated as the prevailing party. (See Adler v. Vaicius (1993) 21 Cal.App.4th 1770, 1777; Elster v. Friedman (1989) 211 Cal.App.3d 1439, 1443.) Appellant relies strongly on these cases in support of her argument that she was the prevailing party below and thus entitled to attorney fees.

For two reasons, however, we conclude that these cases are not controlling here. First of all, even regarding the pertinent Code of Civil Procedure provision, those cases held only that the trial court may apply CCP section 1032(a)(4); neither case stated or even implied that the trial court must do so. Secondly, the statute involved here, section 6344(a), is not a part of the Code of Civil Procedure but appears in the DVPA chapter of the Family Code; it was moved into that Code in 1993. (Stats. 1993, ch. 219,  154, see also Oriola, supra, 84 Cal.App.4th at p. 405.) Indeed, several sections of the Family Code confirm that its various definitions govern construction of the entire code. (See Fam. Code,  50, 6201.) For both of these reasons, we reject appellants contention that the lower court erred in not applying CCP section 1032(a)(4) to determine who was the prevailing party below.

We conclude, therefore, that there is no requirement in DVPA proceedings to refer to the Code of Civil Procedure to determine who is the prevailing party for purposes of an attorney fee award. Rather, we hold that the much more generally-applied principle of abuse of discretion is the standard of review applicable to (1) the determination of who is the prevailing party, (2) whether that party deserves an award of attorney fees, and (3) if so, in what amount.

Regarding the first point, our Supreme Court has specifically held that the determination of who is the prevailing party is a matter for the trial courts discretion. (See Villa De Las Palmas Homeowners Assn. v. Terifaj (2004) 33 Cal.4th 73, 94, citing approvingly a ruling of Division Five of this Court to this effect, Heather Farms Homeowners Assn. v. Robinson (1994) 21 Cal.App.4th 1568, 1574; see also Arias v. Katella Townhouse Homeowners Assn., Inc. (2005) 127 Cal.App.4th 847, 852 & cf. Silver v. Boatwright Home Inspection, Inc. (2002) 97 Cal.App.4th 443, 449.) In recent years, that principle seems to have been strongly favored, even in general civil litigation. Thus, in the very recent case of Ritter & Ritter, Inc. v. Churchill Condominium Assn. (2008) 166 Cal.App.4th 103, 126, one of our sister courts stated the general rule as follows: The trial courts determination of the prevailing party for purposes of awarding attorney fees is an exercise of discretion which should not be disturbed on appeal absent a clear showing of abuse of discretion. [Citations.] The trial court in this case made such a discretionary determination. We only disturb such a determination when there is a clear showing of abuse of discretion. [Citation.]

Regarding the entitlement to attorney fees, as noted above our Supreme Court stated clearly in Connerly that the general standard of review is abuse of discretion. That principle is particularly applicable in domestic relations cases. As the leading text on this subject recites: [T]he trial court has broad discretion in ruling on a motion for attorney fees and costs in marital proceedings. The courts determination will not be disturbed on appeal absent a clear showing of abuse of discretioni.e., that no judge could reasonably have made the order considering all the evidence viewed most favorably in support of the order. (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2007)  14.10; see also In re Marriage of Sullivan (1984) 37 Cal.3d 762, 768-769; In re Marriage of Rosen (2002) 105 Cal.App.4th 808, 829; In re Marriage of Duncan (2001) 90 Cal.App.4th 617, 630; In re Marriage of Jovel (1996) 49 Cal.App.4th 575, 586-587.)

Even though the DVPA is not a marital proceeding, it is still a law contained in and governed by the Family Code. We therefore conclude that the abuse of discretion standard is applicable to our review of the issues of who is the prevailing party and whether attorney fees are warrantedand in what amountin proceedings brought under that law.

Finally, the award of costs, also an issue involved here, is clearly governed by the abuse of discretion standard of review. (See, e.g., Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1558-1559.)

B. There Was No Abuse of Discretion Here.[4]

It is apparent to us, from both a review of the record provided by the parties and, especially, the reporters transcript of the hearing before the trial court, that the court fully understood what had transpired between the parties and did not abuse its discretion in both striking appellants cost bill and denying her motion for attorney fees.[5] The points in the record that, in our view, most strongly support the trial courts ruling are:

1. The factual declarations submitted by the litigants as to the events are significantly different. Appellants consist of two declarations, one of two and half pages in length and the other of barely a page and a half; the first was filed in October 2007 and the last in December 2007. As noted above, many of the allegations of respondent as to various events in March and April of that year are not mentioned, much less contradicted, in these two declarations. By contrast, respondent not only submitted an extended 11-page declaration in December 2007, but many of his factual contentions were supported by declarations submitted at the same time by Ms. Ng, her brother, and two female friends, one of whom was with Ms. Ng at a September 2007 wedding-celebration party, when Ms. Ng received a voicemail message from a woman who was screaming and swearing. There was only one supporting declaration submitted in support of appellants version of events, a two-page declaration by one Dennis Peng, once an apparent friend of both parties. It contradicted respondents version of events in only one respect: Peng asserted that appellant never brandished a baseball bat during the evening or early morning of March 31-April 1, a contention contradicted by the three declarations of respondent, his wife, and her brother.[6]

2. A major point of contention of appellant in her briefs to us is that the only evidence in the record of harassment of him by appellant related to events preceding the issuance of the TRO in June 2007, and not to events thereafter. Thus, per appellant, there was no, or at least insufficient, evidence of harassment after June 2007, i.e., before, during, and after respondents wedding. This contention is incorrect both legally and factually. Legallyas discussed further belowthe trial court would have been justified in making the restraining order permanent entirely on the bases of the factual assertions in the declarations of respondent and his supporting witnesses regarding the events of March and April 2007, particularly because, as just noted, of the two extremely weak declarations submitted by appellant. Factually, the contention is also incorrect, as the declarations of respondent and his supporting witnesses indicate. According to them, after respondent determined to apply for a TRO, (a) Ms. Ng received numerous blocked calls on her cell phone, something that had never happened before, (b) appellants father called respondent and threatened to sue him for libel and slander if he proceeded with that application, and (c) after the TRO was issued, appellants father also called respondents father to attempt to get respondent to withdraw his application for a permanent order.

3. There was substantial evidence that, during the March-April period, and perhaps even thereafter, appellant was using several types of drugs and consuming substantial amounts of alcohol. Even appellants counsel admitted, during the April 3, 2008, hearing before the trial court, that appellant had (a) consulted a forensic psychiatrist to determine that she was not in any sort of danger to herself or others or incompetent to practice law in any way and (b) her admission to the State Bar was held up because of that organizations concerns with the allegations within the restraining order application. In short, as the trial court correctly observed, on this record appellants mental health is at issue.

4. We also agree that, as the trial court said twice at the April 3 hearing, appellant and her counsel engaged in scorched earth practice after the entry of the first TRO by, among other things, spending $89,000 worth of attorneys fees to defend against a restraining order that was clearly called for and making no search for agreement to resolve a domestic dispute.

5. But to reiterate a point made earlier, the trial court did not need toand did notrely upon the evidence of repeated phone calls from appellant to respondent and Ms. Ng (particularly the latter) after the entry of the TRO. As the trial court noted, the real issues involved appellants behavior on the night of March 31-April 1 and that respondent had to call the police because of it. Appellant never refuted either these facts or her clear and substantial role in them. Indeed, her counsel conceded at the hearing that he was not disputing that [the parties argument] got out of hand and led to the police involvement.

Similarly, appellant did not attempt, even slightly, to refute the allegations of respondent regarding the events of April 14, including appellants threat to cut herself with a meat cleaver, getting into the tub fully clothed and drinking wine, taking drugs the night before, and a resulting second call to the police, who took her to a mental hospital for a suicide watch.

All of these points considered, we are clear that the trial court did not abuse its discretion in both granting respondents motion to tax costs and denying appellants motion for attorney fees.

IV. DISPOSITION

The order appealed from is affirmed.

_________________________

Haerle, Acting P.J.

We concur:

_________________________

Lambden, J.

_________________________

Richman, J.

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[1] All further dates noted are in 2007, unless otherwise noted.

[2] The TRO was renewed by the court three times, the last time being on October 31. There is nothing in the record to indicate that, on any of these occasions, appellant in any way opposed its reissuance.

[3] Although, according to respondent, appellant left a voice mail message consisting of screamed and yelled obscenities for Ms. Ng the day before their September wedding celebration.

[4] In view of our determination that there was no abuse of discretion, we need not decide whether appellants alleged failure to comply with San Francisco Superior Court, Local Rules, rule 11.7 (A)(2)(d) also justified the trial courts order.

[5] Before itemizing the bases for our affirmance of the trial courts decision, we think it appropriate to note our strong disagreement with the vocabulary with which appellant and her counsel argue to the contrary. Per her opening brief, respondents facts were wholly fabricated, were refuted by evidence establishing their complete falsity, included at least one heinous allegation and another absurd allegation, together with several wild allegations not to mention outrageous and completely fabricated allegations, caused in part by Ms. Ngs delusions and erratic behavior and paranoid delusions. Things get no better in appellants reply brief, where respondent is again accused of making numerous fabricated and baseless allegations while taking to his soapbox where he pontificates regarding one specific legal argument. The trial court comes out only slightly better, appellant accusing it of improperly lament[ing] the litigation tactics of appellant and, as a result, imposing entirely disproportionate and draconian (a term used at least three times) relief on appellant.

This sort of argument is totally and completely inappropriate, and appellants counsel is admonished to never again repeat it in this court.

[6] In his extremely brief declaration, Peng concedes that the couple quarreled while he was in their house, and nowhere says anything one way or the other about the alleged broken glass coffee table in the house.