The Correct Statute Allowed For Fees And There Was No Prejudice To Plaintiff.
In Jabbar v. Loy, Case No. D075200 (4th Dist., Div. 1 November 8, 2019) (unpublished), plaintiff sought an elder abuse restraining order against defendant pursuant to Welf. & Inst. Code § 15657.03. The following month, the trial court granted plaintiff’s request to dismiss and ordered the entire action dismissed with prejudice.
Defendant then successfully moved for attorneys’ fees, under Code Civ. Proc. § 527.6(i) and Civil Code § 527.6(h), as the prevailing party.
On appeal, plaintiff argued that the lower court erred in awarding the attorneys’ fees because defendant had requested the fees under statutory provisions that did not authorize an award of fees. First, Code Civ. Proc. § 527.6(i) pertained to the procedure for the hearing on a general civil harassment restraining order, not to the authorization to award fees related to an action for an elder abuse restraining order. Second, Civ. Code § 527.6(h) did not exist.
The 4/1 DCA acknowledged defendant cited the wrong statutes in her request for fees. However, Code Civ. Proc. § 527.6(i), relating to general civil harassment restraining orders, previously included a provision for fees (this provision had been moved to subdivision (r) in 2012 and (s) in 2016) nearly identical to the correct statute allowing for the award of fees in this action, Welf. & Inst. Code § 15657.03(t). The 4/1 DCA found that the trial court had the authority to award the fees under the correct statute, and that the award did not prejudice plaintiff. Defendant’s inaccurate citations to the statutes had not deprived plaintiff of adequate notice to oppose the fees. He did oppose the fees in the lower court – just not persuasively.
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