Court of Appeal Also Affirms Refusal to Award Fees Under Anti-SLAPP Fee Shifting Provision or CCP § 527.6, Also Rebuffing Constitutional Challenges to § 527.8.
Here is an interesting decision from the Fifth District Court of Appeal involving a refusal to award attorney’s fees to a prevailing party in a rather unusual harassment injunction case.
Madera Irrigation Dist. v. Pistoresi, Case Nos. F0556668 & F055804 (5th Dist. Jan. 13, 2010) (unpublished) was sparked by a physical altercation by Mr. Pistoresi (an elected member of the District’s Board of Directors) and District’s general manager. Three lawsuits were spawned from this incident, involving dueling injunction requests under Code of Civil Procedure section 527.6 (which provides individuals with the right to obtain a restraining order when threatened with violence) and a separate District request against Mr. Pistoresi under section 527.8 (which allows employers of an employee who has been threatened with violence to seek a restraining order on behalf of the threatened employee and all of its other employees). The donnybrook lasted so long that, by the time of the preliminary injunction hearing, the dispute was basically moot because the individuals were no longer with the District and the District could not establish that Mr. Pistoresi was any future threat. All requests were denied (after the trial court earlier denied Mr. Pistoresi’s anti-SLAPP motion as well as his request to file a late anti-SLAPP motion). Mr. Pistoresi then sought to recover $128,659 in attorney’s fees as the prevailing party, a request denied by the trial court. Mr. Pistoresi appealed the denial of the anti-SLAPP motion request and the denial of his fee request as against the District.
On appeal, the Fifth District affirmed, in a 3-0 opinion authored by Acting Presiding Justice Wiseman.
Mr. Pistoresi was not entitled to any award of fees under the anti-SLAPP fee shifting provision because he never specifically filed an appeal of the order denying his SLAPP motion. Appellate jurisdiction over the issue was lost.
With respect to his argument that fees were awardable under section 527.6(i) (which they are), Mr. Pistoresi picked the wrong statute, because District brought its restraining order petition under another statute, namely, section 527.8.
That brought the appellate panel to whether fees were justified under section 527.8. They were not. Section 527.8 does not authorize a fee award. Mr. Pistoresi leveled constitutional challenges for this omission (mainly based on equal protection and due process grounds), but lost this when Justice Wiseman observed that the Legislature could rationally conclude that fees were needed under section 527.6—where an individual against whom an injunction is sought could not afford legal fees compared to an employer acting through legal counsel with bigger financial pockets. (Robinzine v. Vicory, 143 Cal.App.4th 1416, 1424 (2006).) “We also find merit in the District’s suggestion that another reason to justify a distinction between sections 527.6 and 527.8 is that the availability of fees in section 527.6 might encourage reticent individuals who have been threatened with violence to seek an injunction and thereby reduce the threat of actual harm. There is no need for such an incentive in section 527.8 actions. Employers are often sophisticated business entities, having established relationships with legal counsel, and are motivated to act to reduce the threat of harm to its employees and customers.” (Slip Opn., at p. 9.)