Winning Defendant Failed to Comply With Statutory Requirements for Claiming Fees.
Code of Civil Procedure section 527.6(i) certainly permits a trial court discretion to award attorney’s fees to the prevailing party when a civil harassment restraining order is sought. (Krug v. Maschmeier, 172 Cal.App.4th 796, 802-803 (2009).) However, a prevailing defendant must still follow the proper procedure to request such fees, something not done in the next case we examine.
Defendant did win the battle in a civil harassment restraining order battle. However, she requested fees in a reconsideration motion proceeding brought by plaintiff, a request not made by noticed motion and not supported by declarations/documentation to establish the basis for the claim. Nevertheless, the trial court granted the defense fee request and awarded $1,500 in fees against plaintiff (even though the matter had been continued for a short period of time).
The appellate court in Rashti v Brams, Case No. B218712 (2d Dist., Div. 7 Nov. 3, 2010) (unpublished) reversed the fee award. The problem was that the defense did not follow the proper procedure established in Code of Civil Procedure section 1033.5(c)(5) for claiming fees as costs, namely, upon noticed motion, at the time the statement of decision was rendered, concurrent with a costs claim (supported by declaration or affidavit), or upon entry of default. Defendant did not comply with this procedure and did not provide supporting documentation in support of the request. So, the fee award was reversed.