Nicolino v. Rey CA2/5 ( 2022 )

Filed 4/27/22 Nicolino v. Rey CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
VENUS NICOLINO, B307752
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 20STRO02579)
SAMANTHA REY,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Joshua D. Wayser, Judge. Affirmed.
Gusdorff Law and Janet Gusdorff; Robert Freund Law and
Robert S. Freund for Plaintiff and Appellant.
Lefkowitz Law and Jamie Lefkowitz for Defendant and
Respondent.
Petitioner and appellant Venus Nicolino (Nicolino) sought a
civil harassment restraining order against her erstwhile personal
assistant and personal manager, respondent Samantha Rey
(Rey). Nicolino accused Rey of, among other things, being
obsessed with Nicolino and accessing Nicolino’s electronic
accounts after her employment ended. In response, Rey filed a
declaration describing her employment with Nicolino, including
assertions related to Nicolino’s mental health and marriage. The
trial court denied Nicolino’s request for a restraining order—a
ruling Nicolino never appealed. But Nicolino subsequently filed a
motion to seal, essentially in toto, the declaration Rey filed in
opposition to the restraining order request and Rey filed a motion
for attorney fees for prevailing against Nicolino. The trial court
denied the motion to seal and granted the motion for attorney
fees, and we consider the correctness of both of these rulings.
I. BACKGROUND
A. Background and Petition
Rey began working for Nicolino, a Doctor of Clinical
Psychology who pursued a career in television and media, in May
2017. Approximately three years later, in February 2020, her
employment ended. Rey and Nicolino disagree about the
circumstances under which she left her employment, with Rey
contending she quit, and Nicolino contending she terminated
Rey’s employment.
Some three months after the professional relationship
ended, Nicolino sought a civil harassment restraining order
against Rey. Nicolino’s petition for the order asserted sundry
alleged wrongs: Rey verbally abused her during the majority of
Rey’s employment, Rey learned personal information about
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Nicolino and threatened to use the information against her, and
Rey violated Nicolino’s privacy by accessing her office,
belongings, and phone without permission. Nicolino further
contended that after Rey stopped working for her, Rey continued
to harass her, stalked her once, and accessed digital accounts and
files belonging to Nicolino.
B. The Temporary Restraining Order and Aftermath
The trial court issued a temporary restraining order
against Rey pending the hearing on Nicolino’s petition. The
temporary restraining order protected Nicolino, her husband, and
three minors.
Prior to the hearing on the petition for a restraining order,
Nicolino filed an application for an order to show cause re
contempt. In support of the application, Nicolino filed a
declaration asserting Rey accessed her computer and uploaded a
new document to her production company’s Google Docs account,
in violation of the temporary restraining order. Nicolino also
alleged Rey obsessed over her relationship with Nicolino and
attached several notes she previously received from Rey to
support assertions that Rey caused Nicolino to fear for her safety.
Nicolino asserted that, as a Doctor of Clinical Psychology, she
“know[s]” Rey’s behavior is “Borderline Personality Disorder with
Anger and Behavioral Instability.”
C. Rey’s Response and Declaration
Rey filed a form response opposing the request for a
restraining order. In support thereof, Rey filed a 22 page
declaration describing her dealings with Nicolino. The
declaration attached approximately seventy pages of exhibits.
3
In her declaration, Rey described her employment with
Nicolino, including the tasks she performed as Nicolino’s personal
assistant. She described Nicolino as a “very, very difficult boss.”
Rey contended Nicolino’s declaration was permeated by
falsehoods and provided what she referred to as background
information intended to establish Nicolino was not credible and
had a motive to lie about Rey. Among this information were
assertions that Nicolino screamed at Rey regularly, was
emotionally volatile, psychologically abused Rey, and involved
Rey in intimate aspects of her life. In support of the last point,
Rey declared Nicolino had repeatedly threatened to harm herself
and had enlisted Rey’s help in facilitating Nicolino’s alleged
extramarital affairs.
Rey’s declaration also described Nicolino’s attempts to
convince her to sign a non-disclosure agreement after her
employment ended. In doing so, she described and attached a
cease and desist letter she received from counsel for Nicolino that
claimed Rey violated the Computer Fraud and Abuse Act (adding
that violations may result in life imprisonment) and demanded
Rey sign a confidentiality agreement with a $200,000 liquidated
damages clause. Rey also explained Nicolino had filed another
lawsuit against her after requesting the restraining order and
attached a copy of the complaint in that action.
The declaration itself incorporated images of
communications between Nicolino and Rey to illustrate Rey’s
contentions. The exhibits to the declaration included, among
other things, many text conversations between Rey and Nicolino,
and some photographs depicting the latter.
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D. Hearing on the Petition
The trial court held a hearing on the petition over the
course of two days. The substance of the witnesses’ testimony is
largely irrelevant for our purposes in this appeal. We describe
only the aspects of the hearing that bear upon the matters at
issue, and most of these pertain to the trial court’s remarks and
its ruling.
During the course of the hearing, the trial court referred to
Rey’s declaration and its exhibits numerous times. The court
stated more than once that it had read the papers, and
specifically said it had “read every text message.” Early in the
hearing, Nicolino argued Rey’s actions in the litigation—which at
that point amounted to the filing of her declaration—underscored
the need for a restraining order because of the way Rey used
Nicolino’s confidential information. In response, the trial court
said it was “such a tricky issue” with “First Amendment issues
and . . . litigation privilege issues.” The court noted there were
issues about “course of conduct” and mused that it might not
reach the First Amendment or the litigation privilege because
“[i]t’s all either part of the pattern of a course of conduct, and it’s
all sort of lined up and it’s reflective of something, or it doesn’t.”
During testimony regarding some of the assertions in Rey’s
declaration, the trial court urged the parties to touch upon the
issues generally, without getting into unnecessary details. In
general remarks, the court stated: “Look, I need to be clear about
something so the record can go transparent on an issue. I have
read each and every piece of paper in this case. As a result of
having done that, I understand the subject matter of the issues. I
am exercising my discretion because I do not need to further hear
about it because I understand it and it wouldn’t be appropriate,
5
under the circumstances, to further inquire about it because I
understand it. And the situation is difficult enough as is that I
wish to just keep the record limited in that respect because I
don’t need any further information on that subject matter. I
consider it not necessary for today’s purposes.”
The court adopted largely the same posture during specific
lines of questioning. When Nicolino was asked about alleged
threats of self harm, the trial court noted it wanted to “try to
avoid the intimate” details and said “[i]f I don’t need to know
about it, I don’t need to know about it; but you may certainly ask
questions about it.” Later, when Rey asked Nicolino whether she
told Rey about claimed extramarital relationships with other
men, Nicolino objected. The court allowed counsel to flesh “this”
out only a little further, believing it was fair to ask whether the
information that Nicolino alleged Rey weaponized was
information Nicolino voluntarily gave her.1
At the end of the first day of the hearing, Nicolino asked
the court to consider whether “some of the more colorful
information” in Rey’s declaration should be excluded from the
public record until the court issued a ruling or, failing that,
should be sealed because the information was irrelevant to the
1
At another point, Nicolino asked the court to clarify why
alleged relationships with other men were relevant to the issues
before the court. The court responded, “[I]t’s the heart of the
issue . . . . this case . . . does center around . . . whether the
information was weaponized or not. And then I have to figure
out, if that information was weaponized, does that meet the
standard?” The court also overruled Nicolino’s objection to a
question about whether Rey considered telling Nicolino’s
husband about the alleged affairs because they were “right at the
heart of it.”
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issues. The court explained its view of the issue on the record:
“[I]t’s a rabbit hole for me, and I prefer not to go down rabbit
holes because of the First Amendment issues and litigation
privilege issues. [¶] . . . [¶] I thought about it, and . . . I
think . . . right now you would have to bring an application to file
it under seal. That’s the easiest answer. But I think the answer
is it’s tricky for me under the case law to rely on litigation
content, generally . . . . [¶] And it’s a very complicated thing to
have to think about because . . . the pleadings were very personal
and information was shared. And it was done with strategy and
with thought. And I’m careful about that because I have to be
careful. I don’t know that I could touch that right now. But I
understand your argument.” The court acknowledged that
Nicolino believed “her absolute wors[t] nightmare has happened”
but recognized that must be balanced against rights of free
speech and access.
Nicolino asked if she could have the opportunity to file an
application to seal before the declaration was placed in the public
record. The court noted, and Rey confirmed, that the declaration
had already been filed and was thus already part of the public
record. The trial court then said, “I can’t touch it without an
application to seal.”
The court took the matter under submission and issued a
minute order denying the petition for a restraining order. The
court’s order recognized the parties “had a close professional and
personal relationship for several years” and stated that “[c]ertain
of [r]espondent’s conduct during that time was questionable, but
her conduct ultimately did not rise to the level of harassment
that is required for a [Civil Procedure] section 527.6 injunction to
issue.”
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E. Subsequent Motions
1. Nicolino’s motion to seal
Approximately one month after the trial court’s ruling,
Nicolino filed a motion to seal Rey’s declaration. The version of
the declaration as proposed to be sealed redacted essentially the
entirety of Rey’s declaration and all of its exhibits. More
specifically, the proposed redacted version of Rey’s declaration
left visible only the caption page, the footer on each page of the
declaration reflecting the page number and the identity of the
document, Rey’s averment under penalty of perjury that her
statements are true and correct, and the proof of service. It
redacted the entirety of every exhibit, leaving visible only page
numbers and exhibit cover sheets.
The sealing motion argued there was an overriding interest
in protecting Nicolino’s private and confidential information and
contended the declaration included “graphic, detailed, malicious,
and false allegations and images regarding highly sensitive,
potentially embarrassing information about [Nicolino] and her
family, and . . . confidential conversations related to [Nicolino’s]
medical history.” Nicolino further contended none of the
information she sought to seal addressed any of the elements
relevant to the trial court’s ruling on the restraining order.
Nicolino argued her overriding interest in her privacy would be
prejudiced if the record were not sealed, and she represented her
request to seal the declaration was narrowly tailored. In a
footnote, she requested an opportunity to resubmit the motion
and requested “guidance from the Court” if the court were not
inclined to grant the requested relief.
Nicolino’s attorney submitted a declaration in support of
the motion to seal. The declaration asserted Nicolino applied for
8
a temporary restraining order in part because Rey told third
parties she possessed personal, confidential, and sensitive
information about Nicolino and Nicolino was worried Rey would
use that information maliciously. Nicolino’s attorney later
submitted a supplemental declaration claiming the trial court
repeatedly sustained her objections to Rey’s “attempts to
introduce the irrelevant accusations in the Rey Declaration”
throughout the two day hearing on the request for a restraining
order.
2. Rey’s motion for attorney fees
Rey filed a motion for attorney fees, seeking fees as the
prevailing party under Code of Civil Procedure section 527.6.
Rey sought $36,362.50 in fees and $1,564.43 in costs.
Nicolino opposed the motion for fees arguing the trial court
should deny the motion because (1) the litigation would have
been unnecessary if Rey had agreed to sign a non-disclosure
agreement after her employment ended, and (2) Rey requested
fees unrelated to the Code of Civil Procedure section 527.6
petition. On the second point, Nicolino specifically argued the
court should deny Rey approximately $4,000 in fees incurred in
connection with Nicolino’s motion to seal because the motion was
an ancillary post-judgment motion. Nicolino did not specifically
address any other requested fees in her opposition.
3. The hearing on the sealing and fees motions
The trial court held a hearing on the motions to seal and for
attorney fees. On the motion for attorney fees, Nicolino’s
attorney argued fees were not warranted because the case was
closely contested. In some contrast, the court explained it
9
believed there were many complications in the case itself,
including some related to Nicolino’s wealth, her cease and desist
letter, and Rey’s background.
Nicolino, who was present at the hearing, wanted to read a
statement to the court. She interrupted the court while the court
was explaining its concern about her request, given the pendency
of other litigation involving the same parties. The court
ultimately determined it did not need to hear Nicolino’s
statement, noting in part, “I appreciate that she has a different
perspective and wants me to hear it, but we don’t --” Nicolino
interrupted again, stating she did not have a different
perspective, and saying it was “just a statement.” The court then
said the following:
“Dr. Nicolino, you’re like a spoiled child. You . . . you let
people in on your life, and then you get called on it because you
sent an inappropriate letter that was heavy-handed and ham-
fisted, when you should have just called a friend and said there
was a misunderstanding.” Nicolino protested, saying that was
untrue and disagreeing with the court’s statement that she had
her day in court. The court then added: “You are your own worst
enemy. You can’t control yourself. You breached boundaries.
You shared information. You sued someone. They called you on
it. [¶] . . . [¶] And you’re getting the results. [¶] . . . [¶] I had a
rational explanation, which I found persuasive, of what had
happened, and you can’t seem to understand that, but I
understood it. And you’re stuck on being the victim. I don’t
think you’re the victim here.” Nicolino interjected many times
during the these remarks by the court, and the court ultimately
deemed the matter submitted.
10
The trial court later issued a minute order denying the
motion to seal and granting the motion for attorney fees. As to
the motion to seal, the court found Nicolino’s request overbroad
and not narrowly tailored because she sought to seal the entirety
of Rey’s declaration. It noted there were two other pending civil
matters brought by Nicolino and her production company against
Rey, which related to the conduct alleged in the restraining order
proceedings, and the court thought it would be imprudent to
restrict or redact portions of the record in this case under the
circumstances. The court further found Nicolino’s declaration
provided an insufficient basis to justify the sealing.
As to the motion for attorney fees, the court found Rey was
the prevailing party and opted to award fees under the statute in
an exercise of its discretion. The court explained Nicolino made
serious personal allegations against Rey, Rey fairly defended
against the allegations, Nicolino had the ability to pay the fees,
and Rey’s counsel did “an outstanding job” of protecting his
client. The court found counsel’s hourly rate ($550) was within
the range of similarly skilled litigators and took no general issue
with counsel’s billing records. The court deducted a total of 1.4
hours of time spent on collateral issues and other litigation
between the parties and awarded Rey a total of $37,139.01 in
fees.
II. DISCUSSION
The trial court did not err in denying the motion to seal
because Nicolino did not narrowly tailor her request for sealing.
Instead, Nicolino asked the court to seal the entire substance of
Rey’s declaration, which included, among other things, Rey’s
general description of her employment with Nicolino and
11
statements to which Nicolino could have no legitimate privacy
objection.
The trial court’s order awarding Rey attorney fees also does
not warrant reversal. Though the record reflects the court’s
patience was wearing thin with Nicolino’s interruptions at the
pertinent hearing, our review of the entire record leaves us
satisfied that the court’s order was an appropriate exercise of
discretion. Nicolino’s specific challenges to certain awarded fees
fail because the fees were either authorized or un-objected-to
below.
A. The Trial Court Did Not Err in Declining to Seal
Rey’s Declaration
California courts recognize a common law right of access to
public documents, including court records. (Overstock.com, Inc. v.
Goldman Sachs Group, Inc. (2014) 231 Cal.App.4th 471, 483
(Overstock).) Court records are presumed to be “‘open to the
public unless they are specifically exempted from disclosure by
statute or are protected by the court itself due to the necessity of
confidentiality.’ [Citations.]” (Ibid.)
California law also recognizes a First Amendment right of
access to court proceedings and documents. (NBC Subsidiary
(KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1208,
fn. 25 (NBC); Overstock, supra, 231 Cal.App.4th at 484; In re
Marriage of Nicholas (2010) 186 Cal.App.4th 1566, 1575
(Nicholas).) “A strong presumption exists in favor of public
access to court records in ordinary civil trials. [Citation.] That is
because ‘the public has an interest, in all civil cases, in observing
and assessing the performance of its public judicial system, and
that interest strongly supports a general right of access in
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ordinary civil cases.’ [Citation.]” (Nicholas, supra, 186
Cal.App.4th at 1575.)
California Rules of Court, rules 2.550 and 2.551 set
standards to further the right of access to court records. Rule
2.550 provides that “[u]nless confidentiality is required by law,
court records are presumed to be open.” (Cal. Rules of Court, rule
2.550(c).) Rule 2.550 further provides a court may order a record
sealed “only if it expressly finds facts that establish: [¶] (1)
There exists an overriding interest that overcomes the right of
public access to the record; [¶] (2) The overriding interest
supports sealing the record; [¶] (3) A substantial probability
exists that the overriding interest will be prejudiced if the record
is not sealed; [¶] (4) The proposed sealing is narrowly tailored;
and [¶] (5) No less restrictive means exist to achieve the
overriding interest.” (Cal. Rules of Court, rule 2.550(d).)
“California courts have taken varying approaches to the
standard of review” of an order granting or denying a motion to
seal court records, depending on whether the trial court sealed
records, refused to seal records, or unsealed records. (Overstock,
supra, 231 Cal.App.4th at 490.) When reviewing an order
refusing to seal (or an order unsealing) records, the reviewing
court evaluates whether the sealed records rules apply de novo
and, if so, determines “whether substantial evidence supports the
trial court’s express or implied findings that the requirements for
sealing are not met.” (Id. at 492; see People v. Jackson (2005) 128
Cal.App.4th 1009, 1020; In re Providian Credit Card Cases (2002)
96 Cal.App.4th 292, 302-303.)
We thus look first to the applicability of the sealed records
rules, which generally apply to “records sealed or proposed to be
sealed by court order.” (Cal. Rules of Court, rule 2.550(a)(1).)
13
Nicolino argues Rey’s declaration is not subject to the rules
because “irrelevant discovery materials or materials as to which
evidentiary objections are sustained[ ] are not ‘submitted as a
basis for adjudication’ and thus are not within the ambit of the
constitutional right of access and, concomitantly, not subject to
the sealed records rules.” (Overstock, supra, 231 Cal.App.4th at
492.) In so arguing, Nicolino ignores the fact that neither the
information in Rey’s declaration nor the exhibits attached thereto
were obtained through the discovery process. The exception,
which by its terms is limited to “discovery materials,” does not
apply. (See Cal. Rules of Court, rules 2.550(a)(2), (3).)
We next turn to whether substantial evidence supports the
trial court’s denial of the motion, which was predicated on three
independently sufficient reasons: (1) Nicolino’s request was
overly broad and not narrowly tailored; (2) the declaration in
support of the sealing motion did not provide a sufficient basis to
justify sealing; and (3) it would be imprudent to seal the
declaration given the pendency of other related (in the colloquial
sense) actions between Nicolino, her production company, and
Rey.
Substantial evidence supports the trial court’s
determination that Nicolino’s sealing proposal was not narrowly
tailored—indeed, quite the opposite: Nicolino proposed to redact
the entire substance of Rey’s declaration. Even if Nicolino’s
complaints about the contents of Rey’s declaration were justified,
this level of redaction is plainly not narrowly tailored. Because
rule 2.550 of the California Rules of Court requires a court to find
facts to establish all five listed factors, including that the
proposed sealing is narrowly tailored, the lack of narrow tailoring
suffices to affirm the trial court’s ruling and we need not discuss
14
the substantial evidence supporting the trial court’s conclusion
that the declaration submitted in support of the sealing motion
was deficient.
Nicolino disagrees, primarily on the ground, which we have
already rejected, that she was not required to narrowly tailor her
request because the sealed records rules do not apply. She also
contends her request was narrowly tailored because Rey “weaved
her irrelevant vitriol through the pleading” such that redacting
the entire declaration was necessary. Nicolino’s specific
examples of the “irrelevant vitriol,” however, begin with a
statement on page four of Rey’s declaration. At a bare minimum,
the first page of Rey’s declaration appears both devoid of any so-
called vitriol and relevant to the proceedings: the contents
include Rey’s general description of her employment with
Nicolino. Nicolino also argues the trial court should have
permitted her to resubmit a more narrowly tailored version of a
request to seal. But that is too little too late. It was Nicolino’s
burden to present the court with a narrowly tailored request and
she did not do so.
Nicolino also contends the trial court had the inherent
power to strike a “document containing disrespectful, scandalous,
or abusive language directed against the courts, officials, or
litigants, or to take such other action as the circumstances may
require” (Warner v. Warner (1955) 135 Cal.App.2d 302, 304), and
the court abused its discretion by failing to recognize it had such
power. Assuming without deciding that the language in Rey’s
declaration rises to the level of “disrespectful, scandalous, or
abusive,” we conclude the record does not affirmatively
demonstrate the trial court was unaware of its discretion.
15
Nicolino points to the trial court’s statement that the court
could not touch the declaration without a motion to seal as
evidence it did not understand its discretion. In doing so,
Nicolino ignores the rest of the trial court’s remarks on the issue.
Earlier in the same discussion, the trial court expressed its belief
that the issue of sealing was complicated and stated Nicolino
filing an application to file under seal was “the easiest answer.”
The court’s subsequent statement that it could not touch the
declaration without an application to seal can be understood as
the court affirming its prior conclusion that an application was
the “easiest” approach and informing Nicolino she should file an
application. By determining this was the “easiest” approach, the
court was implicitly recognizing there were other approaches
available, such as an exercise of its inherent power.
Even if we agreed, however, with Nicolino’s contention that
the trial court was unaware of its discretion, the record amply
demonstrates the court would not have exercised that discretion.
At the hearing, Nicolino objected to questions that delved into the
more sensitive topics the Rey declaration addressed. The court
cautioned Rey to address the topics generally, rather than by
delving into the details, but it also indicated it wanted to hear
testimony on the issues. Crucially, the trial court expressly
addressed the reason for this on the record, stating the court had
read all of the filings and was exercising its discretion to limit
testimony on certain topics because the court understood the
subject matter of the issues and “the situation is difficult enough
as is that I wish to just keep the record limited in that respect
because I don’t need any further information on that subject
matter.” The trial court stated the issues were relevant to its
determination and limited testimony precisely because it had
16
read the contents of the documents, including Rey’s declaration.
There is no reasonable probability it would have stricken Rey’s
declaration if it had known it had the discretion to do so.
B. The Trial Court’s Attorney Fees Award Is Not an
Abuse of Discretion
“‘The “experienced trial judge is the best judge of the value
of professional services rendered in his court, and while his
judgment is of course subject to review, it will not be disturbed
unless the appellate court is convinced that it is clearly wrong”’—
meaning that it abused its discretion.” (PLCM Group, Inc. v.
Drexler (2000) 22 Cal.4th 1084, 1095.) Nicolino mounts two
challenges to the trial court’s attorney fees award. First, she
argues the trial court’s fee award is infected by partiality, i.e., by
the court’s asserted animus against her. Second, she argues that
the trial court erred by granting Rey fees for certain tasks
performed by her attorney. Neither argument is meritorious.
Nicolino’s first argument, based on a smattering of excerpts
from the record, is that the trial court awarded Rey attorney fees
because it was partial to Rey and/or prejudiced against Nicolino.
Specifically, Nicolino complains that the trial judge characterized
Rey as Nicolino’s “friend,” expressed an interest in Nicolino’s
financial status and allowed Nicolino’s financial status to affect
its decision, made assumptions about Rey’s status, and lost his
temper at Nicolino “unprovoked.” These arguments do not
establish the trial court abused its discretion in awarding Rey
fees.
First, the record contains sufficient evidence from which
the trial court could reasonably conclude Rey and Nicolino were
indeed, at one point, friends. Rey so stated in her declaration,
17
and Nicolino referred to Rey as her “friend” in a text message
that was admitted as an exhibit. Rey also testified at the hearing
that she and Nicolino had been close friends at one point.
Second, the trial court inquired into Nicolino’s financial
status during the hearing on the restraining order—not in
connection with the attorney fee motion—to understand the
context of Nicolino’s relationship with Rey. Indeed, the court
explained its rationale, stating it does not usually like to make
such inquiries but the “context” of the parties’ relationships was
an issue in the case (at least one of the incidents upon which
Nicolino based her request for a restraining order occurred in her
home). Moreover, the court did not indicate any of those factors
influenced its decision to award Rey attorney fees. Though the
court acknowledged Nicolino’s ability to pay the fee award in the
minute order ruling on the motions, a party’s ability to pay fees is
sometimes a factor a court is required to consider in awarding
attorney fees. (E.g., Fam. Code, § 2030, subd. (a)(2).) Even if
consideration of an ability to pay was improper in this case, we
believe the record indicates it played at most a minor role in the
fees determination such that there is no reasonable probability
the fee award would have been different absent consideration of
an ability to pay.
Third, Nicolino takes issue with certain statements the
court made, contending they indicate the court incorrectly
assumed Rey was an unsophisticated young woman who was a
victim of Nicolino, and claims the court lost its temper at Nicolino
during the motion hearing “unprovoked.” As to the former,
Nicolino’s argument amounts to an attempt to litigate the
accuracy of the court’s impressions. We will not entertain that
here, particularly where the court’s determination on the merits
18
of the restraining order is not at issue. As to the latter, having
read the transcript of the hearing on these motions, we disagree
with Nicolino’s characterization of the court’s reaction as
“unprovoked.” Nicolino, not her attorney, interrupted the trial
court twice while the court was explaining its concerns about her
request to read a statement at the motion hearing and its
ultimate determination that it would not hear the statement.
While the court would have done better to maintain a more
patient approach even in the face of repeated interruptions, our
review of the record satisfies us that the court’s comments reflect
its view of the evidence, and do not indicate prejudice against
Nicolino or partiality for Rey.
Turning to Nicolino’s second argument, she contends the
trial court abused its discretion by awarding Rey fees for time
spent on three categories of work: (1) 7.35 hours opposing
Nicolino’s motion to seal; (2) 1.2 hours working with a specific
attorney; and (3) approximately 1.75 hours working on potential
settlements. The problem with the latter two arguments is that
Nicolino did not raise them in the trial court. “It is well
established that appellate courts will ordinarily not consider
errors that ‘could have been, but [were] not raised below.’
[Citations.] The rule applies to defenses as well as theories of
liability, and to a ‘new theory for or against recovery’ of attorney
fees.” (Findleton v. Coyote Valley Band of Pomo Indians (2018)
27 Cal.App.5th 565, 569.) Because Nicolino did not assert those
arguments below, we do not consider them on appeal.
Nicolino did, however, raise the issue of fees related to her
motion to seal below. Rey sought, and the trial court awarded,
attorney fees pursuant to the civil harassment restraining order
statute, Code of Civil Procedure section 527.6, subdivision (s),
19
which provides as follows: “The prevailing party in an action
brought pursuant to this section may be awarded court costs and
attorney’s fees, if any.” (Code Civ. Proc., § 527.6, subd. (s).)
Nicolino argues fees for the time Rey’s attorney spent addressing
Nicolino’s motion to seal are not authorized because Nicolino’s
motion to seal was not, itself, brought under Code of Civil
Procedure section 527.6, but rather under Rules of Court rules
2.550 and 2.551.
Nicolino reads the statute too narrowly. By its plain
language, subdivision (s) authorizes the award of attorney fees
incurred “in an action” brought pursuant to Code of Civil
Procedure section 527.6. Nicolino’s motion to seal in this case
was, naturally, brought in the same action she initiated under
this statute. That the motion she filed was itself brought under a
Rule of Court does not divorce the motion to seal from the
“action” brought pursuant to Code of Civil Procedure section
527.6. The trial court was within its discretion to award fees for
the work.
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DISPOSITION
The trial court’s orders are affirmed. Upon issuance of the
remittitur, the materials filed in this court conditionally under
seal are to be unsealed. Respondent shall recover her costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
KIM, J.
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