Plaintiff Dismissed Her Action, After Initial Successes, Not On The Merits But For Fear Of Her Safety, Such That Fees Were Unwarranted Under The Peculiar Circumstances.
So, who says that appellate jurists are not sometimes convinced by unique circumstances to find that an attorney’s fees award against a litigant should be reversed? Not us, and the next case illustrates that this actually does occur on a rare occasion where the facts so dictate.
In Farboodi v. Tavangar, Case No. B279875 (2d Dist., Div. 3 Aug. 20, 2018) (unpublished), plaintiff (an Irani national who was in the U.S. on a student visa) sought a domestic violence restraining order against a former romantic partner. She did obtain a TRO, was issued a 3-year domestic violence restraining order, and had the transcript of the case sealed for the time being. Plaintiff then sought a permanent sealing order based on the fact that Iran’s Penal Code criminalizes sexual conduct between unmarried men and women, which it punishes by flogging or death. She was concerned that these records would be provided by defendant to Irani government officials upon her return to Iran. At a hearing on the motion to seal the case, the trial judge indicated it might not seal them permanently at which point plaintiff chose not to testify unless the testimony was sealed, in the process withdrawing her request for a restraining order. The trial judge denied the motion to seal and found defendant to be the prevailing party such that plaintiff had to pay $5,623 in fees and $488 in costs.
Plaintiff appealed the motion to seal ruling and fees award against her. She went 1-1, winning a reversal of the fees/costs award.
Although the record sealing order denial was affirmed, the appellate court found that the fees/costs award should be overturned “in these unique circumstances” because defendant did not prevail. Although recognizing that a court has the ability to award fees and costs to the prevailing party in a domestic violence restraining order proceeding (Fam. Code, § 6344(a)), the appellate court believed that plaintiff dismissed her claim not on the merits, but because she feared serious consequences in her home country of Iran if she did not drop the case. As such, defendant did not prevail because there was a withdrawal of the case having no relationship to the merits of the controversy.