Garcia v. Ades CA4/1

Filed 10/28/26 Garcia v. Ades CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA ALEXANDER GARCIA, D085637 Respondent, (San Diego Super. Ct. No. v. 37-2024-00028385-CU-HR-CTL) JAMES ADES, Appellant. APPEAL from an order of the Superior Court of San Diego County, Rebecca F. Zipp, Judge. Affirmed. James Ades, in pro. per., for Appellant. Alexander Garcia, in pro. per., for Respondent.  Alexander Garcia sought a civil harassment restraining order against James Ades pursuant to Code of Civil Procedure1 section 527.6. The matter proceeded to an evidentiary hearing where, during a break in the middle of testimony, the parties entered into an “informal agreement” in which Garcia agreed to dismiss his case and Ades agreed to leave Garcia alone. The case was dismissed without prejudice, and Ades subsequently filed a motion seeking attorney’s fees under section 527.6, subdivision (s). The court denied that motion, finding in part that Ades was not the prevailing party deserving of fees. Finding no abuse of discretion in that conclusion, we affirm. FACTUAL AND PROCEDURAL BACKGROUND For several years, Garcia has hosted a social running group called Tuesday Waterfront Run or TWR. Ades joined the group around August 2022. At some point during the year that followed, Garcia began receiving complaints that Ades was bothering other group members, particularly women. Then, in December 2023, Ades made an “impromptu speech” in front of the group discussing an affair he had with another member of the running group and a party, hosted by that member’s new boyfriend, that he had been removed from. Garcia messaged Ades the next day and told him he was no longer welcome to attend any TWR events due to his behavior. Ades stayed away for a while, but eventually returned in March 2024. The first week that month, a run leader privately reminded Ades he was no longer welcome, but Ades remained. The next week, Garcia privately told Ades to leave. When he refused, Garcia made an announcement in front of the group that Ades 1 Further undesignated statutory references are to the Code of Civil Procedure. 2 was there uninvited and encouraged everyone to ignore him. The week after that, Garcia made a similar announcement. Ades ran with the group that day but never returned. Around May 2024, Ades sued Garcia in small claims court for defamation based on his announcements. Around the same time, in June 2024, Garcia requested a civil harassment restraining order (CHRO) prohibiting Ades from harassing, contacting, or coming near him. Ades filed a response denying any misconduct, opposing all orders, and seeking attorney’s fees and costs in amounts to be determined. The trial court held a CHRO hearing in August 2024. Upon recounting his history with Ades, Garcia testified he was “confident that [Ades] will continue to escalate the situation” and there was “no end to what he is capable of” and thus he wanted the restraining order. On cross-examination, however, he conceded that Ades had only sent him one or two “lengthy messages” and had never threatened him. In fact, after Garcia filed his request for a CHRO, he encountered Ades at another running group and Ades did not speak to him at all. After Garcia testified, the court asked to see counsel in her chambers. Back on the record in open court, the parties confirmed they had reached an “informal agreement” in which Garcia agreed to dismiss his case and Ades agreed he would not attend TWR events for one year, would not contact Garcia directly or through third parties, and would stay away from Garcia should they come across each other at another running group or in public. The court agreed to “reserve on attorneys’ fees” so that Ades could file a noticed motion. It then dismissed the matter without prejudice. In October 2024, Ades (now representing himself) filed a motion for attorney’s fees under section 527.6, subdivision (s). That provision states, 3 “The prevailing party in an action brought pursuant to this section may be awarded court costs and attorney’s fees, if any.” Ades contended he was the prevailing party because a dismissal was entered in his favor. He sought a total of $9,193.30, attaching invoices from his attorney’s office ($7,019.30 in fees) and the court reporter ($2,000 for her services and $174 for transcripts). Following a hearing roughly six weeks later, the court denied the fees motion.2 It deemed the motion untimely as it was not filed within 15 days after the date of service of notice of entry of dismissal, noting that Ades “was present on the date of dismissal and therefore received notice on that date.” It also found the motion defective insofar as it did not include a memorandum of costs or “evidence of attorneys’ fees that comply with California and local court rules.” On the merits, the court interpreted section 527.6, subdivision (s) to mean “that the party seeking fees must demonstrate something out of the ordinary, either in terms of the inappropriateness of the request for a CHRO, or the success or extent of respondent’s defense, to warrant[] a departure from the traditional rule” that each party pays their own attorney’s fees. In the court’s view, Ades had not met that standard. It went on to find that Ades “incorrectly deem[ed] himself the prevailing party” since “[t]he case resulted in a settlement, agreed to by both parties.” DISCUSSION Ades challenges each aspect of the trial court’s ruling on appeal. Assuming without deciding that his motion was timely and procedurally 2 The hearing was unreported. The court issued a settled statement indicating it lacked an independent recollection of the hearing beyond the fact that “the crux of the issue was (a) whether Mr. Ades could be properly deemed a ‘prevailing party,’ and (b) if he was a prevailing party, whether the court would exercise its discretion to award attorneys’ fees.” 4 correct, we see no abuse of discretion in the court’s finding that he was not the prevailing party, and therefore affirm the denial of attorney’s fees. The trial court correctly observed that “California follows the American rule regarding attorney’s fees.” (Travis v. Brand (2023) 14 Cal.5th 411, 417 (Travis).) “Under that rule, litigants are ordinarily responsible for paying their own attorney’s fees, unless a statute or agreement provides otherwise.” (Ibid.) Section 527.6 is such a statute. As noted above, subdivision (s) of section 527.6 provides that “[t]he prevailing party in an action brought pursuant to this section may be awarded court costs and attorney’s fees, if any.” (Italics added.) Whether a party “prevail[ed],” as well as whether a prevailing party should be awarded fees, are decisions we leave to the trial court’s broad discretion, subject to review only if that discretion was abused. (Elster v. Friedman (1989) 211 Cal.App.3d 1439, 1443 (Elster); Krug v. Maschmeier (2009) 172 Cal.App.4th 796, 802 (Krug).) Because section 527.6 does not otherwise define “prevailing party,” some courts have referred to section 1032, subdivision (a)(4) for guidance.3 (Adler v. Vaicius (1993) 21 Cal.App.4th 1770, 1777; Elster, supra, 211 Cal.App.3d at p. 1443.) At the same time, however, it is clear that courts are not bound by the definition set forth in section 1032 when deciding whether to award attorney’s fees under different statutes. (DeSaulles v. Community Hospital of Monterey Peninsula (2016) 62 Cal.4th 1140, 1147 [“The definition 3 That provision states in part: “ ‘Prevailing party’ includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. If any party recovers other than monetary relief and in situations other than as specified, the ‘prevailing party’ shall be as determined by the court ... .” (§ 1032, subd. (a)(4).) 5 of ‘prevailing party’ in section 1032 is particular to that statute and does not necessarily apply to attorney fee statutes”]; Heather Farms Homeowners Association v. Robinson (1994) 21 Cal.App.4th 1568, 1572 (Heather Farms) [the notion “that a litigant who prevails under the cost statute is necessarily the prevailing party for purposes of attorney fees, has been uniformly rejected by the courts of this state”].) Ultimately, the court must determine whether a party prevailed on a practical level, taking into account whether the party received what they wanted from the litigation. (Heather Farms, at p. 1574; Elster, at pp. 1443–1444.) Moreover, it has the option to conclude that, practically speaking, there was no prevailing party. (Heather Farms, at p. 1574.) Here, it is unclear why the trial court believed Ades needed to “demonstrate something out of the ordinary” to warrant a departure from the general rule that each party bear their own fees. Section 527.6, subdivision (s) codifies a departure from the general “American rule,” and it does not require a defendant to show the CHRO action was frivolous or brought in bad faith in order to recover fees. (Travis, supra, 14 Cal.5th at p. 417; Krug, supra, 172 Cal.App.4th at p. 798.) Thus, to the extent the court thought something “out of the ordinary” was required to award fees to a prevailing party, it erred. In any event, however, the minute order of the hearing on attorney’s fees and the settled statement make clear the court understood that the decision to award Ades fees turned on whether he was the prevailing party. As to that critical issue, it found Ades was not the prevailing party, and we deem that conclusion to be a very reasonable if not compelling one under the circumstances of this case. Although Garcia’s action was dismissed, that did not automatically mean Ades prevailed. (See Heather Farms, supra, 21 Cal.App.4th at 6 pp. 1570, 1574; Damian v. Tamondong (1998) 65 Cal.App.4th 1115, 1129– 1130.) The case was dismissed not due to any persuasive legal argument he made, but because Ades voluntarily entered into an “informal agreement” with Garcia promising to stay away from TWR and Garcia, and not to contact Garcia. Ades asserts that Garcia did not win anything by virtue of this agreement because he was already leaving Garcia alone—he had not attended TWR or contacted Garcia in months by the time Garcia requested the CHRO. On a practical level, however, Garcia did obtain something he did not have before—an express assurance in open court that Ades would leave him alone in the future. Finally, to the extent Ades argues that the trial court indicated the “informal agreement” would not impact his recovery of attorney’s fees, we note the judge merely acknowledged that the issue of attorney’s fees was not properly before her at the conclusion of the evidentiary hearing.4 She never suggested, much less ruled, that any such motion would be meritorious. DISPOSITION The order denying attorney’s fees is affirmed. Garcia is entitled to costs on appeal. DATO, Acting P. J. WE CONCUR: DO, J. BUCHANAN, J. 4 “[Ades’s Counsel:] [W]ould the Court at least reserve on attorneys’ fees so that I can file an appropriate motion? “[The Court:] Yes. I won’t rule on attorneys’ fees today. I don’t have a noticed motion.” 7