Opinion
A158282
05-29-2020
TATYANA E. DREVALEVA, Plaintiff and Appellant, v. ALAMEDA HEALTH SYSTEM, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG 19002853)
Tatyana Drevaleva, representing herself, prevailed on a petition filed pursuant to the California Public Records Act (CPRA) (Gov. Code, § 6250 et seq.), in which she sought documents relating to the termination of her employment with Alameda Health System (AHS) and ensuing administrative investigations of her wage and unlawful termination claims. The CPRA provides for attorney's fees and costs to a prevailing requestor. (§ 6259, subd. (d).) Although the trial court found that Drevaleva prevailed on her CPRA petition, it nevertheless denied her request for attorney's fees because she was self-represented. The trial court denied Drevaleva's request for attorney's fees under Code of Civil Procedure section 128.5 for the same reason and also found that Drevaleva failed to demonstrate the existence of acts that would warrant any award under Code of Civil Procedure section 128.5.
All further statutory references are to the Government Code unless otherwise stated.
In this appeal from the orders denying Drevaleva's request for attorney's fees under the CPRA and under Code of Civil Procedure section 128.5, we find that, as a self-represented litigant, Drevaleva is not entitled to recover attorney's fees under either statute. We also find that Drevaleva has not established that the trial court erred in otherwise denying her motion under Code of Civil Procedure section 128.5. Accordingly, we affirm.
BACKGROUND
AHS hired Drevaleva as a monitor technician and terminated her employment shortly thereafter. Drevaleva brought several administrative actions and lawsuits related to her termination against AHS and the Department of Industrial Relations, Division of Labor Standards Enforcement (DIR).
In December 2018, Drevaleva submitted a public records request to AHS. She filed a verified petition under the CPRA on January 16, 2019, alleging that AHS did not respond to her request and refused to produce the requested documents. AHS answered Drevaleva's petition, and the court sustained Drevaleva's demurrer to the answer with respect to four of AHS's affirmative defenses. In March 2019, AHS produced three documents in its possession in response to the CPRA request and declared that it had no other responsive documents.
In June 2019, after a bench trial/merits hearing on the CPRA petition, the trial court denied Drevaleva's petition as moot, finding that AHS had produced the documents within its possession responsive to her CPRA request and AHS did not withhold any documents. The trial court declared Drevaleva to be the prevailing party because her petition caused AHS to produce some documents that had not been produced in response to her CPRA request. The court then entered a judgment of dismissal.
Drevaleva subsequently filed two motions for attorney's fees and costs, one pursuant to Code of Civil Procedure section 128.5, and the other under section 6259. The trial court denied Drevaleva's requests for attorney's fees because she did not present any evidence that she incurred attorney's fees and pro se litigants are not entitled to such fees. The court denied her request for costs as moot, finding costs were awarded by operation of law when the trial court determined that Drevaleva was the prevailing party. Regarding the motion under Code of Civil Procedure section 128.5, the court also found that Drevaleva did not demonstrate the existence of acts that would justify sanctions. Drevaleva timely appealed.
DISCUSSION
A. Attorney's Fees under the CPRA
Drevaleva argues that she is entitled to attorney's fees under the CPRA as a self-represented litigant. We disagree.
Normally, we review an order granting or denying attorney's fees for abuse of discretion. (Crews v. Willows Unified School Dist. (2013) 217 Cal.App.4th 1368, 1379.) De novo review is appropriate here, however, where the question of whether a self-represented litigant is entitled to attorney's fees presents an issue of statutory interpretation. (See ibid.)
"California follows what is commonly referred to as the American rule, which provides that each party to a lawsuit must ordinarily pay his own attorney fees." (Trope v. Katz (1995) 11 Cal.4th 274, 278 (Trope).) However, attorney's fees are recoverable when authorized by contract or statute. (Id. at pp. 278-279.) The CPRA includes a mandatory fee-shifting statute, providing that "[t]he court shall award court costs and reasonable attorney's fees to the requester should the requester prevail in litigation filed pursuant to this section." (§ 6259, subd. (d).)
AHS disputes the trial court's determination that Drevaleva was the prevailing party under the CPRA, but we need not address this issue in light of our conclusion that Drevaleva is not entitled to recover attorney's fees as a self-represented litigant.
Interpreting two statutes that allow recovery of "attorney's fees," our Supreme Court has held that self-represented attorneys cannot recover such fees. The Supreme Court first addressed the question in Trope. There, a law firm representing itself prevailed and moved for attorney's fees under Civil Code section 1717, subdivision (a), which mandates a reciprocal award of "attorney's fees and costs . . . incurred to enforce [a] contract" to the prevailing party where authorized by contract. (Trope, supra, 11 Cal.4th at pp. 277-278.) To answer the question of whether the self-represented law firm could receive attorney's fees, the Supreme Court looked to the plain meaning of "incurred" and "attorney's fees." "To 'incur' a fee, of course, is to 'become liable' for it [citation], i.e., to become obligated to pay it. It follows that an attorney litigating in propria persona cannot be said to 'incur' compensation for his time and his lost business opportunities." (Id. at p. 280.) "[T]he usual and ordinary meaning of the words 'attorney's fees,' both in legal and in general usage, is the consideration that a litigant actually pays or becomes liable to pay in exchange for legal representation. An attorney litigating in propria persona pays no such compensation." (Ibid.) Further, non-attorney pro se litigants are not entitled to recover attorney's fees and permitting a pro se attorney litigant to obtain such fees would create two separate classes of pro se litigants and grant different rights and remedies to each. (Id. at pp. 277, 285.) Thus, the Supreme Court concluded that a self-represented attorney cannot recover "reasonable attorney's fees" under Civil Code section 1717. (Trope, supra, 11 Cal.4th at p. 292.)
Civil Code section 1717, subdivision (a) provides in pertinent part, "In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs."
Later, in Musaelian v. Adams (2009) 45 Cal.4th 512 (Musaelian), the Supreme Court held that attorney's fees could not be awarded to an attorney litigating his own case under Code of Civil Procedure section 128.7, which allows for sanctions, including attorney's fees incurred, for frivolous lawsuits and tactics. (Id. at p. 515.) The Supreme Court reviewed Trope and found that Code of Civil Procedure section 128.7's use of the terms "incur" and "attorney's fees" implies an agency relationship inconsistent with self-representation. (Id. at p. 516.) The Supreme Court also reviewed a number of its cases recognizing that the recovery of attorney's fees turned on the existence of an attorney-client relationship wherein the attorney performed services on behalf of the client. (Id. at p. 520, citing Lolley v. Campbell (2002) 28 Cal.4th 367, 373-376 [attorney's fees could be recovered under Lab. Code, § 98.2 when Labor Commissioner represented party without charge], Ketchum v. Moses (2001) 24 Cal.4th 1122, 1141-1142 [party represented on a contingency basis recovered fees under Code Civ. Proc., § 425.16, subd. (c)], and PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1097 [award of fees under Civ. Code, § 1717 to in-house counsel].) But a party "as in Trope and here, litigating his or her own case" cannot recover attorney's fees. (Musaelian, supra, 45 Cal.4th at p. 520, disapproving Abandonato v. Coldren (1995) 41 Cal.App.4th 264 [upholding award of attorney fees to pro se attorney as a sanction for plaintiff's bad faith tactics under Code Civ. Proc., § 128.5, subd. (a)], and Laborde v. Aronson (2001) 92 Cal.App.4th 459 [upholding award under Code Civ. Proc., § 128.7].)
Drevaleva argues that Trope and Musaelian should not be followed because section 6259, subdivision (d) does not use the word "incur," but appellate courts have applied the reasoning of these cases to fee-shifting statutes that allow an award of "attorney's fees" without using the term "incur." Both Carpenter & Zuckerman, LLP v. Cohen (2011) 195 Cal.App.4th 373, 385 (Cohen), and Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482, 493-494 (Evans), addressed Code of Civil Procedure section 425.16, subdivision (c)(1), which provides for an award of "attorney's fees and costs" to the prevailing defendant. Both courts found that the commonly understood definition of "attorney's fees" discussed in Trope applies with equal force to section 425.16, and a prevailing defendant is entitled to recover attorney's fees thereunder if represented by counsel. (Evans, supra, 160 Cal.App.4th at p. 494; Cohen, supra, 195 Cal.App.4th at p. 385.) Both courts therefore upheld the denial of attorney's fees to self-represented litigants. (Ibid.) Just as in those cases, section 6259, subdivision (d) allows the award of "reasonable attorney's fees," to the prevailing requester and does not permit Drevaleva, who represented herself, to recover attorney's fees.
Drevaleva also argues that Musaelian was wrongly decided. We do not agree, and we could not overrule Musaelian. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [decisions of the California Supreme Court are binding and must be followed by all state courts].)
Code of Civil Procedure section 425.16, subdivision (c)(1) provides, "a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the motion, pursuant to [Code of Civil Procedure] Section 128.5."
Drevaleva does not challenge the trial court's order denying her costs request under section 6259, subdivision (d) as moot, instead stating she may later file a costs memorandum and requesting that this court enter an order requiring AHS to pay her attorney's fees.
B. The Section 128.5 Motion
Drevaleva argues that the trial court erred in denying her request for attorney's fees and costs under Code of Civil Procedure section 128.5. She contends the following conduct was sanctionable: AHS asserted four affirmative defenses that were disposed of by demurrer; AHS alleged that it did not receive her CPRA request, that it had not communicated with the DIR via email, and that it had not refused to issue public records; AHS tried to compel Drevaleva to withdraw her CPRA petition; and AHS filed an answering brief actively opposing her CPRA request and lied therein by saying it had already produced public records. The trial court found that Drevaleva, as a pro se litigant, was not entitled to recover attorney's fees and she failed to establish the existence of acts warranting an award under Code of Civil Procedure section 128.5. We find no cause to reverse the trial court's order.
Under Code of Civil Procedure section 128.5, the "trial court may order a party, the party's attorney, or both, to pay the reasonable expenses, including attorney's fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay." (Code Civ. Proc., § 128.5, subd. (a).) An action is "frivolous" if it is "totally and completely without merit or for the sole purpose of harassing an opposing party," judged by an objective standard. (§ 128.5, subd. (b)(2); Chitsazzadeh v. Kramer & Kaslow (2011) 199 Cal.App.4th 676, 683-684.) The action must also be taken in bad faith, judged by a subjective standard. (In re Marriage of Sahafzadeh-Taeb & Taeb (2019) 39 Cal.App.5th 124, 134-135.)
We presume that the trial court's order denying a request under Code of Civil Procedure section 128.5 is correct, and the standard of review is generally abuse of discretion. (Shelton v. Rancho Mortgage & Investment Corp. (2002) 94 Cal.App.4th 1337, 1345.) " ' " 'Where the issue on appeal is whether the trial court has abused its discretion, the showing necessary to reverse the trial court is insufficient if it presents facts which merely afford an opportunity for a different opinion: "An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. To be entitled to relief on appeal from the result of an alleged abuse of discretion it must clearly appear that the injury resulting from such a wrong is sufficiently grave to amount to a manifest miscarriage of justice." ' " ' " (Id. at pp. 1345-1346.) However, we review de novo the question of whether attorney's fees may be awarded to a self-represented litigant under Code of Civil Procedure section 128.5. (See Musaelian, supra, 45 Cal.4th at pp. 516-517 [engaging in de novo statutory interpretation].)
The trial court did not err in finding that Drevaleva could not be awarded attorney's fees. Under Code of Civil Procedure section 128.5, attorney's fees cannot be awarded to a litigant representing herself. (See Musaelian, supra, 45 Cal.4th at p. 520, disapproving Abandonato, supra, 41 Cal.App.4th 264 [upholding award of attorney's fees to self-represented attorney as sanction for plaintiff's bad faith tactics under Code Civ. Proc., § 128.5, subd. (a)].)
Next, although Drevaleva disagrees with the court's conclusion that she did not demonstrate the existence of acts warranting an award under Code of Civil Procedure section 128.5, she waived this argument by failing to support it with citations to the appellate record. (Cal. Rules of Court, rule 8.204(a)(1)(C); Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768; Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.)
Finally, even if this argument had not been waived, we would reject it. We presume the court's ruling was correct, and Drevaleva fails to establish otherwise. She argues that sanctionable conduct occurred, including in AHS's answer and answering brief for the CPRA petition, but the record does not include the allegedly sanctionable filings, instead including only the trial court's summary order sustaining the demurrer to four of AHS's affirmative defenses, Drevaleva's memorandum of points and authorities below listing the allegedly sanctionable conduct, and the order on the CPRA petition finding that AHS produced responsive documents in March 2019 and there was no evidence that it was in possession of responsive documents that had not been produced. Even if we were permitted to substitute our judgment for the trial court's judgment, this incomplete record provides no basis to do so.
DISPOSITION
The trial court's orders are affirmed.
/s/_________
BROWN, J. WE CONCUR: /s/_________
STREETER, ACTING P. J. /s/_________
TUCHER, J.