K.B. v. M.S. CA4/3

Filed 11/12/26 K.B. v. M.S. CA4/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE K.B., Plaintiff and Respondent, G066026 v. (Super. Ct. No. 23P000358) M.S., ORDER MODIFYING OPINION AND DENYING Defendant and Appellant. PETITION FOR REHEARING; NO CHANGE IN JUDGMENT It is hereby ordered the opinion filed on October 15, 2026, be modified as follows: 1. On page four, at the third sentence of the second full paragraph, which begins with the phrase “It also,” replace the word “requires” with the word “authorizes.” This modification does not change the judgment.  The petition for rehearing is DENIED. SCOTT, J. WE CONCUR: MOORE, ACTING P. J. DELANEY, J. 2 Filed 10/15/26 K.B. v. M.S. CA4/3 (unmodified opinion) NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE K.B., Plaintiff and Respondent, G066026 v. (Super. Ct. No. 23P000358) M.S., OPINION Defendant and Appellant. Appeal from an order of the Superior Court of Orange County, Elia A. Naqvi, Judge. Affirmed. Quinn & Dworakowski, Stephane Quinn and David Dworakowski, for Defendant and Appellant. Shuff Law Firm, Tamara Shuff Mortensen and Joseph A. Shuff, III, for Plaintiff and Respondent.  Defendant M.S. appeals from an attorney fee award obtained after securing a domestic violence restraining order (DVRO) against plaintiff K.B. She contends the court wrongly failed to make a lodestar calculation, resulting in an unreasonably low award. But she did not expressly request findings, leading us to presume the court made an acceptable lodestar analysis. Moreover, the award was reasonable. We affirm. FACTS M.S. sought a DVRO against K.B. in April 2025. In her request, she also sought custody orders regarding their four-year-old child and attorney fees. She supported her request with an 11-page declaration and 19 exhibits. K.B. later filed his own custody request. At the initial appearance, the court set the matter for an evidentiary hearing. The hearing transpired over three afternoons. The court issued the DVRO and set a further hearing to decide custody and attorney fees. Before the hearing, the parties filed income and expense declarations and M.S.’s counsel filed an attorney fee declaration. (See In re Marriage of Keech (1999) 75 Cal.App.4th 860 (Keech).) Counsel sought just over $40,000 for approximately 58 hours of attorney work performed by three attorneys at hourly rates from $450 to $650, and approximately 49 hours of paralegal/legal assistant/clerk time at $95 to $195 per hour. At the continued hearing, the court made custody orders and heard from counsel on the attorney fee request. K.B.’s counsel asserted “$40,000 is just unreasonable for this domestic violence case since we had three afternoons of trial”; a more reasonable award “would be an order for 10- to $20,000, in that range.” M.S.’s counsel noted he is a certified family law 2 specialist and the “case demanded a lot of time and effort and preparation in order to demonstrate the long-term harassment that had been occurring in this case.” The two disputed whether all of M.S.’s requested fees were incurred in connection with the DVRO. K.B.’s counsel then noted M.S. herself “makes [$]34,000 per month.” M.S.’s counsel replied: “As far as my client’s income, she has the ability to pay my fees. That’s not relevant. . . . These are prevailing party fees.” The trial court awarded $25,000 to M.S. It explained: “So under Family Code Section 6344, the court may award fees to the prevailing party. And really what the court is looking at is not a disparity of income or need base, but the paying party’s has -- or is reasonably likely to have the ability to pay. That’s the only consideration that the court has.” The court found K.B. had the ability to pay. The court then acknowledged “the amount of work” that M.S.’s counsel had done: “I have reviewed the Keech document and obviously the court understands the amount of work that [M.S.’s] counsel put in with the -- all the evidence that was accrued. But the court does find that the reasonable fees for [the] domestic violence hearing and the amount award would be $25,000 . . . .” Neither counsel asked the court to explain how it calculated the award. DISCUSSION M.S. states “[t]his appeal presents a straightforward question: whether a trial court may reduce a fully supported attorney fee request by nearly 40 percent without articulating a lodestar analysis, without identifying a single excessive entry, and without providing any reasoned basis for the reduction.” 3  While there are times when a dramatic, unexplained attorney fee reduction should be reversed, we believe we can affirm the award here. At the outset, we note M.S. cites no case requiring a lodestar analysis when awarding attorney fees in a DVRO proceeding. The governing statute requires such an award to “a prevailing petitioner.” (Fam. Code, § 6344, subd. (a).)1 It also requires an award to “a prevailing respondent” when the “request is frivolous or solely intended to abuse, intimidate, or cause unnecessary delay.” (§ 6344, subd. (b).) The statute doesn’t expressly call for the lodestar. K.B.’s experienced counsel states: “Never before this appeal has this author even heard the term ‘lodestar analysis’ in a family law matter.” We looked for published cases applying the lodestar analysis in the DVRO context, expecting to find several. We didn’t find one. Yet it remains that “the fee setting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 (PLCM); but see Ketchum v. Moses (2001) 24 Cal.4th 1122, 1136 [no “blanket ‘lodestar only’ approach” for all “fee-shifting statute[s]”].) And “the rules of practice and procedure applicable to civil actions generally . . . apply to, and constitute the rules of practice and procedure in, proceedings under” the Family Code. (§ 210.) We’re willing to assume without deciding that the ordinary lodestar analysis applies to attorney fee requests in the DVRO context. That said, we’re obligated to presume the court applied the lodestar here. “We find no California case law requiring trial courts to explain their decisions on all motions for attorney fees and costs, or even requiring an 1 All statutory references are to this code. 4 express acknowledgment of the lodestar amount. The absence of an explanation of a ruling may make it more difficult for an appellate court to uphold it as reasonable, but we will not presume error based on such an omission. All intendments and presumptions are indulged to support the judgment on matters as to which the record is silent, and error must be affirmatively shown. In the absence of evidence to the contrary, we presume that the trial court considered the relevant factors.” (Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1250 (Taylor) [cleaned up].) At the very least, if M.S. wanted a precise lodestar calculation, she needed to ask the trial court for it. “In California, the trial court has no sua sponte duty to make specific factual findings explaining its calculation of the fee award and the appellate courts will infer all findings exist to support the trial court’s determination. California courts have stated a disinclination to review the amount of an award when specific findings were not requested. Thus, in California, it is incumbent on the party who is dissatisfied with the court’s calculation of the number of allowable hours to request specific findings.” (Taylor, supra, 222 Cal.App.4th at p. 1250 [cleaned up].) M.S. contends the trial court expressly disclaimed conducting a lodestar analysis. She relies on the remark that K.B.’s ability to pay was “the only consideration that the court has.” We do not read the comment so narrowly. Taken in the context of the parties’ debate over the relevance of M.S.’s income, the remark is more reasonably construed as shifting the focus to K.B. This was correct—M.S. was entitled to recover attorney fees as “a prevailing petitioner” regardless of her actual financial need, so long as K.B. had, or was “reasonably likely to have, the ability to pay.” (§ 6344, subds. (a) & (c).) Besides, the court expressly acknowledged M.S.’s counsel’s Keech declaration, which was offered to show 5 “the nature and extent of the services rendered” and “the reasonableness of those fees.” (See Keech, supra, 75 Cal.App.4th at p. 870.) And the court went on to explicitly find that $25,000 were “the reasonable fees.” Of course, we cannot read section 6344 as requiring a full award of all requested attorney fees in all DVRO cases. If the Legislature wanted automatic approval of such requests without any exercise of discretion, we would expect it to say so plainly. As it did not, we conclude courts retain oversight over attorney fees, even in DVRO cases. And so some measure of reasonableness (whether through a formal lodestar analysis or otherwise) remains the touchstone. The “foremost task” in setting attorney fees is to determine reasonableness. (Guillory v. Hill (2019) 36 Cal.App.5th 802, 811.) To the extent M.S. is contending only that her attorney fee request was reasonable in full, we don’t really disagree. The Keech declaration was thorough. Six hundred and fifty dollars per hour for a certified specialist strikes us as good value; the other rates seem typical. Having reviewed the DVRO request and the hearing transcript, we see able, admirable representation from counsel—as we saw on appeal. But we weren’t in the trenches. As always, the “‘“experienced trial judge is the best judge of the value of professional services rendered”’” before the court. (PLCM, supra, 22 Cal.4th at p. 1095.) Thus, while M.S.’s $40,000 request may have been perfectly reasonable, that doesn’t mean K.B.’s $20,000 counteroffer was unreasonable. Reasonableness often occupies a range—and we believe $25,000 was within that range. The award certainly was not “so . . . small that it shocks the conscience and suggests that passion and prejudice influenced the determination.” (Akins v. Enterprise Rent–A–Car Co. (2000) 79 Cal.App.4th 1127, 1134.) Rather, it suggests the trial judge exercised sound discretion in choosing within the range of reasonableness. 6  DISPOSITION The order is affirmed. Respondent shall recover his costs on appeal. SCOTT, J. WE CONCUR: MOORE, ACTING P. J. DELANEY, J. 7