Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG07304885
Siggins, J.
Martin Frates appeals from the denial of his request for attorney fees under Labor Code section 1138.1, subdivision (b). Frates claims he was entitled to fees after the trial court dismissed an application for an injunction filed by Glenn Brooks under Code of Civil Procedure section 527.6. We disagree that Frates was entitled to such fees and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Frates is a business representative of the Teamsters Union. Brooks is a supervisor employed by United Parcel Service (UPS). Brooks, proceeding in propria persona, filed a “Request for Orders to Stop Harassment” against Frates, using the mandatory Judicial Council Form for temporary restraining orders and injunctions to prohibit harassment under Code of Civil Procedure section 527.6. The petition described a December 2006 altercation, when Frates allegedly grabbed Brooks by his jacket, pushed and hit him, and threatened to continue the assault. Brooks sought a stay-away order to keep Frates at least 100 yards from his home, workplace, and vehicle. The court scheduled a hearing and imposed such a temporary order. The order was subsequently reissued at Brooks’s request on the grounds that Frates was out of the state during pendency of the temporary order.
The notice of hearing form also prohibited the possession of firearms, and required that they be sold to a licensed gun dealer or turned in to police within 24 hours of service of the order, as provided by Code of Civil Procedure section 527.9.
Frates was represented by counsel who argued that Labor Code section 1138.1 prescribed the applicable procedure for the issuance of an injunction, not Code of Civil Procedure section 527.6, because Frates was exercising privileges guaranteed by the teamsters’ collective bargaining agreement with UPS when the incident alleged by Brooks occurred. At the initial hearing on the stay away order, the court modified the order to permit Frates to come to the workplace to conduct his business, and ordered that all contact with Brooks be respectful and not include threatening or harassing language.
Frates’s opposition to the stay away order noted that Brooks in his petition for relief stated that he “[had] to deal with [Frates] on labor issues.” The court agreed and dismissed Brooks’s petition, telling him “this needs to be taken care of through your grievance procedure at work.” The court also denied Frates’s request for attorney fees, concluding “this is a specialty area” of law and that, contrary to Frates’s allegations, Brooks did not attempt to deliberately circumvent Labor Code section 1138.1. Frates appealed.
During the hearing, Brooks told the court: “I want on the record that this is me against Martin Frates. This is not U.P.S. against Martin Frates. This is a big political deal I wish I had no part of because I have no idea what he’s talking about, all this stuff. I’m just a single guy who got assaulted. [¶] There’s a lot of threats going around that I’m going to have to pay his lawyer fees and a bunch of stuff to try to keep me out of this courtroom that – you know, I don’t want to pay all that stuff. I want this guy to leave me alone.” Later, Brooks reiterated: “There is all this political stuff going on. I don’t want nothing to do with it. I just want to be left alone and do my job.”
DISCUSSION
Labor Code section 1138.1, subdivision (b) provides, in part: “No temporary restraining order or temporary injunction shall be issued [pursuant to section 1138.1, which imposes certain conditions on the issuance of injunctive relief in “any case involving or growing out of a labor dispute”] except on the condition that the complainant first files an undertaking with adequate security in an amount to be fixed by the court sufficient to recompense those enjoined for any loss, expense, or damage caused by the improvident or erroneous issuance of the order or injunction, including all reasonable costs, together with a reasonable attorney’s fee, and expense of defense against the order or against the granting of any injunctive relief sought in the same proceeding and subsequently denied by the court.” Frates says section 1138.1 entitles him to attorney fees in this case. But Brooks’s petition for injunctive relief was not filed pursuant to section 1138.1, and the court specifically rejected Frates’s argument that Brooks, who was proceeding in propria persona, deliberately attempted to circumvent the requirements of section 1138.1.
The undertaking specified in Labor Code section 1138.1 was neither furnished nor sought, and there was no bond against which attorney fees could be charged pursuant to the statute. (See Intern. Ass’n of Machinists v. Eastern Airlines (1st Cir. 1991) 925 F.2d 6, 10 [recovery of attorney fees under parallel federal statute correctly limited to amount of posted bond]; Chicago Typographical U. v. Chicago Newspaper (7th Cir. 1980) 620 F.2d 602, 605 [error to award attorney fees in excess of zero bond required at time temporary restraining order was improperly issued].)
Frates attempts to analogize the availability of attorney fees under Labor Code section 1138.1, subdivision (b), to the anti-SLAPP statute, Code of Civil Procedure section 425.16, subdivision (c), which provides that a “prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.” But the enabling language of Code of Civil Procedure section 425.16 is conspicuously missing from Labor Code section 1138.1, subdivision (b). Moreover, Frates filed the petition for injunctive relief pursuant to Code of Civil Procedure section 527.6, the civil harassment law. Code of Civil Procedure section 527.6, subdivision (i) It provides that “[t]he prevailing party in any action brought under this section may be awarded court costs and attorney’s fees, if any.” (Italics added.) Frates has not shown it was error for the court to deny attorney fees under Code of Civil Procedure section 527.6 in the circumstances presented here.
Frates also seeks reversal of the expired temporary restraining orders, but does not allege that he is subject to any continuing disability resulting from those orders after the trial court dismissed Brooks’s petition for relief.
DISPOSITION
The order of the trial court denying the request for attorney fees is affirmed.
We concur: McGuiness, P.J. Pollak, J.