California Court of Appeal Dec 18, 2023 No. A167143Unpublished
Filed 12/18/23 Fok v. Binkoff CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
CORINNE FOK, Plaintiff and Respondent, A167143 v. RICHARD BINKOFF, (City & County of San Francisco Super. Ct. No. CCH22584886) Defendant and Appellant.
Defendant Richard Binkoff appeals from the denial of his motion for
attorney fees and costs under Code of Civil Procedure section 527.6,
subdivision (s) (fee motion).1 According to Binkoff, the trial court abused its
discretion by declining to find him the prevailing party and refusing to award
him any fees or costs. We disagree and affirm.
BACKGROUND
On August 4, 2022, pro per plaintiff and respondent Corinne Fok filed a
Request for Civil Harassment Restraining Orders (Request), seeking a
restraining order against Binkoff. As the main ground for the Request, Fok
1 All further statutory references are to the Code of Civil Procedure.
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described an incident on July 28, 2022 in which Binkoff approached her car
as she and her 16-year old son pulled into their driveway. According to the
Request, Binkoff “put[] his face at the passenger window where [Fok] was
sitting” and gave her “an evil stare.” Fok and her son immediately drove
away and snuck home 10 minutes later after Binkoff was gone. Fok further
declared under penalty of perjury that Binkoff sent her “threatening texts in”
February 2021 and had, in the past, shouted profanities at her and wished
Cal.App.3d 1439; see Sharif v. Mehusa, Inc. (2015) 241 Cal.App.4th 185, 192
[“The courts have repeatedly rejected the contention that the prevailing party
definitions in . . . section 1032, subdivision (a)(4) ‘should be automatically
applied in cases where the authorizing attorney fees statute does not define
prevailing party’ ”].) Under this standard, the trial court did not abuse its
discretion. (See, supra, at pp. 4–5.)
Adler v. Vaicius (1993) 21 Cal.App.4th 1770 (Adler) is also inapposite.
In Adler, the trial court awarded attorney fees and costs to the defendant
under section 527.6 after the defendant had filed a response and after the
plaintiff had dismissed her request for a restraining order with prejudice.
(Id. at p. 1776.) Finding that the trial court did not abuse its discretion, the
court of appeal concluded that “the general definition of ‘prevailing party’ in
section 1032 may be used.” (Id. at p. 1777, italics added.) It did not,
however, require the use of that definition when determining the prevailing
party under section 527.6. Moreover, Adler is distinguishable. This appeal
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involves a challenge to the denial of fees and costs. And unlike the defendant
in Adler who filed a response (id. at p. 1773) and did not agree to the
plaintiff’s dismissal with prejudice (see id. at p. 1774), Binkoff did not file a
response and agreed to leave Fok alone in exchange for Fok’s dismissal
without prejudice.
Similarly, Elster—which also involved a challenge to an award of
attorney fees and costs—is distinguishable. In Elster, the trial court found
that the plaintiffs prevailed on a practical level (Elster, supra, 211 Cal.App.3d
at p. 1444), after the defendants had served an offer to compromise and filed
a response, after a hearing had been held, and after the parties had agreed to
a mutual injunction “similar to the temporary restraining order” that the
plaintiffs had previously obtained (id. at p. 1442). Nothing in Elster suggests
that the trial court abused its discretion in denying Binkoff’s fee motion.
Finally, we reject Binkoff’s argument that attorney “[f]ees are
warranted to deter gamesmanship and abuse of the civil harassment law.”
Contrary to Binkoff’s assertion, there is ample evidence that Fok’s Request
was not frivolous or filed in bad faith.
For example, the issuance of the TRO, by itself, suggests that Fok’s
Request was not frivolous (see § 527.6, subd. (d) [“A temporary restraining
order may be issued . . ., based on a declaration that, to the satisfaction of the
court, shows reasonable proof of harassment of the petitioner by the
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respondent, and that great or irreparable harm would result to the
petitioner,” italics added]), even if it did not preclude a fee award against Fok
(see Adler, supra, 21 Cal.App.4th at p. 1776). More notably, the Request—
which declared under penalty of perjury that Binkoff approached Fok’s car in
a menacing manner after threatening her, yelling profanities at her, and
wishing her dead over the past seven months—arguably supported a
restraining order based on “a knowing and willful course of conduct directed
at a specific person that seriously alarms, annoys, or harasses the person,
and that serves no legitimate purpose.” (§ 527.6, subd. (b)(3).) Thus, we
cannot conclude, in the absence of a response or any evidence from Binkoff,
that the Request was frivolous or that Fok acted in bad faith. Finally, Fok’s
decision to dismiss after consulting an attorney does not establish that she
believed her Request was frivolous or she would lose. To the contrary, Fok
could have concluded that obtaining Binkoff’s agreement to leave her alone
made more sense than pursuing a restraining order due to the delay from a
likely continuance and the cost of hiring an attorney.
DISPOSITION
The trial court’s order denying Binkoff’s motion for attorney fees and
costs is affirmed. Fok is entitled to recover her costs on appeal.
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CHOU, J.
WE CONCUR:
SIMONS, Acting P.J. BURNS, J.
Fok v. Binkoff / A167143 9
AI Brief
AI-generated · verify before citing
Holding. The trial court did not abuse its discretion in denying the defendant's motion for attorney fees and costs under Code of Civil Procedure section 527.6, as the court reasonably determined the defendant was not the prevailing party on a practical level following the plaintiff's voluntary dismissal without prejudice.
Issues
Whether the trial court abused its discretion in denying a motion for attorney fees and costs under Code of Civil Procedure section 527.6.
Whether the definition of 'prevailing party' in Code of Civil Procedure section 1032, subdivision (a)(4) must be automatically applied to attorney fee requests under section 527.6.
Disposition. affirmed
Quotations verified verbatim against the opinion
“The “determination of the prevailing party lies in the [] court’s sound discretion” and that “determination must be upheld unless there is a manifest abuse of discretion.””
“Absent a determination of the merits, it may be difficult or impossible to decide which party has prevailed as a practical matter, and the court may appropriately find there is no prevailing party”