California Court of Appeal Apr 22, 2015 No. D066119Unpublished
Before: Haller, Benlce, O'Rourke
Filed 4/22/15 Faton v. Ahmedo CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SINA FATON, D066119
Respondent,
v. (Super. Ct. No. DV037475)
BASHAR AHMEDO,
Appellant.
APPEAL from an order of the Superior Court of San Diego County, Edlene C.
McKenzie, Patricia Guerrero, Judges. Affirmed.
Sina Faton, in pro. per., for Respondent.
Carl M. Hancock for Appellant.
Bashar Ahmedo appeals from an order requiring him to pay attorney fees incurred
by Sina Faton to obtain a domestic violence restraining order against him. He asserts the
fee award was improper because the fees were not requested in a timely or proper manner
and they were unsupported by the evidence. We reject these contentions and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
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 Family Code section 6344, which was granted by the trial
court.1
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
1 Subsequent unspecified statutory references are to the Family Code.
2 Paragraph 18 of mandatory form DV-100 ("Request for Domestic Violence Restraining Order") promulgated by the Judicial Council of California states: "Lawyer's Fees and Costs [¶] I ask that the [respondent] pay some or all of my lawyer's fees and 2
issued a temporary restraining order (TRO) and set the matter for hearing on August 14,
2013. Regarding attorney fees, the TRO (issued by the court on form DV-110) states:
"Not ordered now but may be ordered after a noticed hearing." (Italics added.)
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.
costs. [¶] You must complete, file and serve Form FL-150, Income and Expense Declaration before your hearing." Subsequent references to forms are to mandatory Judicial Council forms.
3 Paragraph 18 of form DV-120 ("Response to Request for Domestic Violence Restraining Order") states: "Lawyer's Fees and Costs [¶] a. I agree to the order requested. [¶] b. I do not agree to the order requested. (Specify your reasons in item 23, page 4 of this form.) [¶] c. I request the court to order payment of my lawyer's fees and costs. [¶] Whether or not you agree, you must fill out, serve, and file Form FL- 150, Income and Expense Declaration." 3
At the conclusion of the December 31 de novo evidentiary hearing (where both
parties were represented by counsel), the court again granted Faton a one-year DVRO
against Ahmedo (the Second DVRO). The standard-form order (DV-130) used for the
Second DVRO left blank the section referencing payment of attorney fees.
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 section 6344,
subdivision (a).4 The matter was set for hearing on March 24, 2014. It is not clear from
the appellate record precisely when Faton served Ahmedo with the attorney fees motion,
but there is no dispute he was served in a timely fashion with respect to the March 24
hearing on attorney fees.
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
4 Several weeks before the de novo evidentiary hearing, Faton had attempted to file an amended DVRO petition that included a request for attorney fees, but due to procedural matters the amended petition was not accepted by the court clerk. Ahmedo was not served with, nor aware of, the rejected amended DVRO petition containing the fee request. 4
filing of her attorney fees request, Faton submitted discovery requests to Ahmedo
requesting disclosures of his financial resources.
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
5
hours drafting the attorney fees motion, propounding discovery requests, and preparing
declarations.5 Faton contended the case was more than a "typical" DVRO case, noting
that it involved a lengthy procedural history, including two DVRO's, a reconsideration
motion, a writ, numerous pleadings, and significant "back and forth" briefings and
correspondence.
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; section 6344 does
not permit a fee motion that was not filed on the standard DVRO request form before the
DVRO evidentiary hearing; and he was prejudiced by the lack of timely notice because
had he known he was facing a fee request he would have settled the case before the de
novo evidentiary hearing.
5 Faton provided a summation of the law firm's services as follows. (1) Associate/certified family law specialist: $350 per hour, 20 hours, including review of the transcript for the First DVRO hearing when the parties were self-represented; preparation of the pleadings for the reconsideration motion, discovery requests, and stipulation; and appearance at the de novo evidentiary hearing. (2) A second associate: $250 per hour, five hours, including communications with opposing counsel, and review of the pleadings and appearance at the hearing on the reconsideration motion. (3) The firm's founder: $350 per hour, 10 hours, including review of the pleadings and appearance at the de novo evidentiary hearing. Faton's fee request included about 1.5 hours for preparing her response in a related small claims case filed by Ahmedo against Faton. 6
Alternatively, Ahmedo argued the amount of fees requested was excessive. He
contended the case was a routine matter that could not reasonably support the amount of
legal work and representation claimed by Faton; the hourly rates charged by Faton's
attorneys were too high; if Faton had filed an amended DRVO petition to request fees the
parties would have simply exchanged income and expense declarations (as provided for
in the standard DVRO request form) and there would have been no need for a separate
fee motion; and section 6344's prevailing party attorney fees provision did not permit
Faton to promulgate and incur fees for extensive discovery concerning his finances.
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 section 6344 and due process were met through the provision of
notice and a hearing before an award of fees to Faton as the prevailing party. The court
rejected Ahmedo's objection to a fee award based on the possibility that he might have
7
responded differently to the DVRO petition had he known before the de novo evidentiary
hearing that Faton was seeking attorney fees. The court explained: "I find that under the
circumstances and given the procedural history, it is very doubtful he would not have still
gone forward . . . ." Further, the court noted that the TRO issued upon Faton's filing of
the First DVRO request provided notice of potential attorney fees by stating they were
"not ordered now, but may be ordered after a noticed hearing." Relying on the plain
language of section 6344, the court concluded it had jurisdiction to award fees because
Ahmedo had been provided notice before the attorney fees hearing.
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
Section 6344, subdivision (a) states: "After notice and a hearing, the court may
issue an order for the payment of attorney's fees and costs of the prevailing party."
(Italics added.) Section 6344 is part of the Domestic Violence Prevention Act, which
provides for issuance of protective orders in domestic violence situations and for the use
of standard Judicial Council forms (§§ 6200, 6221, 6226, 6300 et seq.). Concerning
Judicial Council forms, section 6226 states: "The Judicial Council shall prescribe the
8
form of the orders and any other documents required by this division and shall
promulgate forms and instructions for applying for orders described in this division." As
indicated in our factual summation, the standard mandatory forms for DVRO requests,
responses, and orders (forms DV-100, DV-110, DV-120, DV-130) include sections
allowing a petitioner and respondent to request attorney fees and for the court to
reference and/or order attorney fees.
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)
section 6344, and the overall DVRO statutory scheme, reflects a legislative intent not to
permit an attorney fees motion that deviates from the procedure provided for in the
standard DVRO request form; and (3) deviation from the procedure set forth in the
standard DVRO request form will result in nonuniform, unfair judicial decisions
concerning the notice required for DVRO attorney fees requests. As we shall explain, we
do not find these claims persuasive.
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.
9
The contention fails because statutory attorney fees need not be pleaded and
proved at trial and may properly be awarded after entry of judgment. (Snatchko v.
trial judge is in a much better position than an appellate court to assess the value of the
15
legal services rendered in his or her court, and the amount of a fee awarded by such a
judge will therefore not be set aside on appeal absent a showing that it is manifestly
excessive in the circumstances.' [Citation.] 'The only proper basis of reversal of the
amount of an attorney fees award is if the amount awarded is so large or small that it
shocks the conscience and suggests that passion and prejudice influenced the
determination.' " (Ibid.)
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
16
her pleadings to the trial court. Ahmedo has not shown the court awarded an
unreasonable amount of fees.
DISPOSITION
The order is affirmed. Costs to respondent.
HALLER, J.
WE CONCUR:
BENKE, Acting P. J.
O'ROURKE, J.
17
AI Brief
AI-generated · verify before citing
Holding. The court held that a prevailing party in a domestic violence restraining order (DVRO) proceeding may be awarded attorney fees under Family Code section 6344 even if the request was not made on the standard Judicial Council form prior to the evidentiary hearing, provided the opposing party received notice and a hearing.
Issues
Whether a party forfeits the right to attorney fees under Family Code section 6344 by failing to request them on the standard DVRO form prior to the evidentiary hearing.
Whether the trial court abused its discretion in awarding $5,000 in attorney fees to the respondent.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The record here shows no deprivation of due process or prejudicial irregularities.”