Faton v. AhmedoFaton v. Ahmedo
As we shall detail below, Ahmedo and Faton initially represented themselves in the proceedings before the trial court, which solely concerned the issue of a Domestic Violence Restraining Order (DVRO). The trial court granted a DVRO against Ahmedo; Ahmedo subsequently obtained counsel and filed a motion for reconsideration; and after reconsidering the matter the court reissued the DVRO against Ahmedo. Faton—who retained counsel when Ahmedo filed his reconsideration motion—thereafter filed a motion for attorney fees under
On appeal, Ahmedo challenges the attorney fees order. Faton has not filed a respondent‘s brief. The record on appeal does not include all of the relevant court orders and hearing transcripts, but the pertinent factual and procedural background is generally ascertainable.
The Court‘s Grant of the DVRO
Ahmedo and Faton were in a dating relationship for about two years, which included periods of cohabitation. On July 30, 2013, Faton filed a DVRO request against Ahmedo. Faton was representing herself and she left blank the section of the standard DVRO petition form (form DV-100) providing for a request of attorney fees.2 The court
On August 7, 2013, Ahmedo filed an opposition to Faton‘s DVRO request; requested his own restraining order against Faton; and obtained a TRO against Faton. Also representing himself, Ahmedo left blank the section of the form (DV-120) concerning attorney fees.3
At the hearing on August 14, 2013, the court issued two orders: (1) an order granting Faton a one-year DVRO against Ahmedo (the First DVRO), and (2) an order dismissing Ahmedo‘s TRO against Faton on the basis that it was retaliatory. The order granting Faton‘s First DVRO request is not included in the appellate record. The standard form order dismissing Ahmedo‘s TRO states attorney fees are “[n]ot applicable.”
Thereafter, Ahmedo retained counsel and filed a motion for reconsideration. In response, Faton also retained counsel to represent her. At a hearing on October 16, 2013, the court granted Ahmedo‘s reconsideration motion and set the matter for a de novo evidentiary hearing on December 31, 2013, with a three-hour time estimate.
Faton‘s Motion for Attorney Fees and Other Pleadings
The same date as the de novo evidentiary hearing (December 31, 2013) and apparently after the court had granted the Second DVRO at that hearing, Faton filed a motion for attorney fees based on her status as the prevailing party under
In her attorney fees motion, Faton delineated her expenses and financial resources, and set forth information to support her claim that Ahmedo had substantial financial resources. She stated the case was a “moderate-to-complicated” domestic violence matter; she anticipated “significant discovery, including subpoenas” might be required; her attorneys charged $350 per hour; to date she had incurred $6,800 in fees; and she anticipated that future fees and costs would be at least $1,500. On the same date as the
On January 21, 2014, Ahmedo challenged the Second DVRO by filing a petition for writ of mandate and request for a stay with this court. On January 23, 2014, this court denied the writ petition.
After engaging in substantial negotiations, on February 26, 2014, the parties reached a stipulation that Ahmedo had the financial resources to pay an award of fees to Faton. The parties agreed there was no need for them to file income and expense declarations unless requested by the court; Ahmedo did not need to provide financial information to Faton; and Faton would withdraw her discovery requests.
Thereafter, Faton submitted additional pleadings concerning her attorney fees request; Ahmedo filed an opposition; and the matter was argued before the court at the March 24, 2014 hearing.
Ultimately, Faton requested $12,655 in attorney fees. In support, she provided a detailed summation setting forth the dates the attorney tasks were performed, identification of the attorney who performed the tasks, a description of the tasks, the attorney‘s hourly rate, and the amount of time and billing for the particular task. The law firm representing Faton provided services through three attorneys who expended seven hours on Ahmedo‘s reconsideration motion; 10 hours on the de novo evidentiary hearing; 1.5 hours reviewing Ahmedo‘s petition for writ of mandate and consulting with a writ expert; eight hours drafting the stipulation concerning Ahmedo‘s ability to pay fees and meeting and corresponding with Ahmedo‘s attorneys concerning the stipulation; and eight
In opposition, Ahmedo argued the court had no authority to award fees to Faton because she did not request them before the de novo evidentiary hearing concerning the Second DVRO request. Ahmedo asserted Faton should have filed an amended standard form DVRO request incorporating a fee request before the de novo evidentiary hearing; her failure to do so constituted a forfeiture of her right to request fees;
In reply, Faton urged the court to discredit Ahmedo‘s claim that the case would have been settled had he known of her attorney fees request before the de novo evidentiary hearing. She argued Ahmedo‘s course of conduct throughout the case had been to ” ‘attack at all costs’ ” and ” ‘fight this until the bitter end,’ ” including by filing the reconsideration motion after the court‘s grant of the First DVRO and the writ after the court‘s grant of the Second DVRO.
Trial Court‘s Order Requiring Ahmedo To Pay Attorney Fees
After reviewing the pleadings and hearing counsel‘s arguments, the court ordered Ahmedo to pay Faton $5,000 for attorney fees.
As to the issue of notice, the court found that although Faton did not file an amended DVRO petition requesting attorney fees before the de novo evidentiary hearing, the requirements of
As to the amount of fees, the court awarded Faton $5,000 instead of the requested $12,655. The court stated it calculated the award amount primarily based on fees incurred for the de novo evidentiary hearing and several additional matters that it found were reasonable. The court stated it had excluded fees that were not appropriate to include in the award, including for matters related to the discovery of Ahmedo‘s finances and review of the writ which had been summarily denied.
DISCUSSION
I. Procedural Challenges
On appeal, Ahmedo challenges the court‘s authority to award attorney fees to Faton, raising several arguments similar to those he made to the trial court. He contends (1) Faton forfeited her right to obtain fees by failing to request them before the de novo evidentiary hearing and failing to request them on the standard DVRO request form; (2)
A. Forfeiture Claim
Ahmedo argues that Faton forfeited her right to request attorney fees because she failed to file an amended standard form DVRO petition incorporating an attorney fees request prior to the de novo evidentiary hearing on her DVRO petition, but instead waited until after issuance of the DVRO to file a request for fees.
Here, because the prevailing party attorney fees were statutorily authorized as an incident to the DVRO request (rather than an item of special damages related to the DRVO request), Faton‘s failure to ask for them on a standard form DVRO petition prior to the evidentiary hearing did not constitute a forfeiture of her right to seek them after the court issued the DVRO in her favor.
Ahmedo asserts
We are not persuaded by Ahmedo‘s suggestion that allowing the notice and hearing concerning attorney fees to occur after adjudication of the DVRO request undermines the legislative goal of providing streamlined mechanisms for handling DVRO petitions. The Legislature‘s stated intent is to prevent domestic violence and to separate persons involved in this violence pending resolution of the causes of the violence (
We also reject Ahmedo‘s assertion that the court had no authority to award attorney fees because Faton did not follow the procedure for fee requests provided in the Judicial Council DVRO petition form. The contents of mandatory family law Judicial Council forms generally equate with rules of court (
Consistent with the conclusion that a trial court retains authority to grant a DVRO attorney fees request even when the standard form procedure was not used,
We are also unpersuaded by Ahmedo‘s claim that allowing an attorney fees request to be filed after the DVRO evidentiary hearing gives the prevailing party an opportunity to engage in excessive discovery concerning the opponent‘s financial resources, whereas an attorney fees request included in the standard DVRO petition form necessarily limits the parties to an exchange of income and expense declarations. Although the standard DVRO forms (forms DV-100, DV-120) require the parties to provide income and expense declarations in conjunction with an attorney fees request (see fns. 2 & 3, ante), these form provisions do not preclude a court from exercising its discretion to permit additional financial discovery in an appropriate case. Any concerns over excessive discovery requests are a matter for judicial resolution, and there is nothing in the
C. Lack of Uniformity and Unfairness Claims
Ahmedo asserts that the interests of uniform judicial decisionmaking require that all DVRO attorney fees requests be made under the procedure set forth in the Judicial Council forms. He posits that without strict adherence to these procedures, trial courts will unfairly decide that some parties are entitled to the pre-DVRO hearing notice provided by the standard forms, whereas others are not, depending, for example (as here), on whether the court finds pre-DVRO hearing notice of the fee request might have affected the party‘s litigation decisions concerning the DVRO request.
Ahmedo‘s claims of unfairness and lack of uniformity are misplaced. The purpose of notice requirements is to afford a party due process. (In re Marriage of Lippel, supra, 51 Cal.3d at p. 1166.) For due process purposes, the relevant inquiry is whether the respondent was afforded notice and an opportunity to defend (ibid.), and whether any procedural irregularities were prejudicial (In re E.M. (2014) 228 Cal.App.4th 828, 851-853). The record here shows no deprivation of due process or prejudicial irregularities.
First, this is not a case where reversal is required because a party was deprived of notice and a meaningful opportunity to defend. (See, e.g., In re Marriage of Lippel, supra, 51 Cal.3d at p. 1167.) Second, the court could reasonably reject Ahmedo‘s delayed-notice claim based on the imputed notice arising from the existence of the statutory provision (
Third, relevant to prejudice, the trial court rejected Ahmedo‘s contention that earlier notice of Faton‘s intent to seek fees might have altered the manner in which he responded to her DVRO request. To the extent the court‘s finding was derived from a credibility evaluation, as an appellate court we defer to this assessment. (In re Marriage of Cochran (2001) 87 Cal.App.4th 1050, 1056.) The court could reasonably deduce that Ahmedo‘s decision to file a writ with our appellate court after issuance of the Second DVRO reflected that he was determined to raise a significant opposition to the DVRO request and he would not have made a different choice even if prior to the de novo evidentiary hearing Faton had expressly notified him that she would seek fees.
Ahmedo has not shown that Faton‘s request for fees after the issuance of the DVRO was improper or caused any prejudice to his rights.
II. Substantial Evidence Challenge
Ahmedo argues the court abused its discretion because the fee award is not supported by substantial evidence.
We review a challenge to the amount of a fee award under the abuse of discretion standard. (Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1509.) ” ‘[A]n experienced trial judge is in a much better position than an appellate court to assess the value of the
Faton requested $12,655 in fees and provided detailed documentation concerning her counsel‘s work and billings to support this request. The trial court awarded her $5,000 in fees. The record shows Faton‘s attorneys responded to and appeared at the hearing on Ahmedo‘s motion for reconsideration; prepared pleadings and appeared at the de novo evidentiary hearing for the Second DVRO request; and prepared pleadings for and appeared at the hearing for the attorney fees request. Ahmedo has not shown that the court abused its discretion in determining that $5,000 was a reasonable amount of fees incurred for this representation.
In support of his challenge to the amount of the award, Ahmedo reiterates essentially the same arguments he made to the trial court when claiming the $12,655 fee request was excessive (for example, the use of three attorneys was unnecessary; their hourly rates were too high; the case was not complex and did not require the amount of time they claimed; and they promulgated excessive and abusive discovery requests). Ahmedo has not explained how these complaints apply to the court‘s award of $5,000, an amount that is substantially less than the amount presented and documented by Faton in
DISPOSITION
The order is affirmed. Costs to respondent.
HALLER, J.
WE CONCUR:
BENKE, Acting P. J.
O‘ROURKE, J.
The opinion filed April 22, 2015, is ordered certified for publication.
BENKE, Acting P. J.
Notes
Subsequent references to forms are to mandatory Judicial Council forms.
Faton‘s fee request included about 1.5 hours for preparing her response in a related small claims case filed by Ahmedo against Faton.