Opinion
B313964
02-17-2023
WHITNEY JOHNS, Plaintiff and Respondent, v. THOMAS CUMMINGS, Defendant and Appellant.
Parlatore Law Group, Elizabeth M. Candelario and Timothy Parlatore for Defendant and Appellant. Provinziano & Associates and Alphonse F. Provinziano for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 20STRO02154, Joshua D. Wayser, Judge.
Parlatore Law Group, Elizabeth M. Candelario and Timothy Parlatore for Defendant and Appellant.
Provinziano & Associates and Alphonse F. Provinziano for Plaintiff and Respondent.
STONE, J.[*]
Thomas Cummings appeals from the trial court's order awarding his former girlfriend Whitney Johns attorney fees under Family Code section 6344 as the prevailing party on a request for a domestic violence restraining order. We affirm.
All further statutory references are to the Family Code unless otherwise stated.
BACKGROUND
Cummings is a recording artist, and Johns is a fitness model and personal trainer. Both have significant online followings and conduct their businesses at least in part via their internet platforms. The two were in a romantic relationship for approximately nine months in 2019 and 2020.
Johns sought and was granted a temporary restraining order against Cummings on April 17, 2020. On December 22, 2020, after a five-day trial, the court found Cummings had "committed abuse" within the meaning of sections 6203 and 6320, and it granted Johns a two-year domestic violence restraining order (DVRO) against Cummings. In addition to the standard stay-away provisions and prohibitions on harassing, threatening, and assaultive behavior towards Johns, the restraining order included a provision forbidding Cummings from making Internet postings disparaging Johns' professional qualifications or referencing her personal or sexual history. The additional provisions were based on extensive evidence presented regarding Cummings' harassing social media posts, including ones calling Johns a sex worker. Following the issuance of the restraining order, the court reserved jurisdiction over the issue of attorney fees and costs.
On February 3, 2021, Johns filed a request for attorney fees and costs against Cummings. Johns sought attorney fees and costs as the prevailing party in her DVRO request under section 6344, as well as attorney fees and costs as sanctions under section 271. Johns' request, totaling $155,192.35, was supported by detailed billing records. Johns contended that Cummings' bad faith litigation tactics and continued violations of the temporary restraining order following its issuance necessitated the sizable fee request. She asserted she lacked the ability to pay this amount as she earned approximately $2,000 per month but had monthly expenses of approximately $6,350. By contrast, Johns contended, Cummings had sufficient liquid assets and income to pay her fees, including $100,000 in cash and over $149,000 in proceeds from a recent GoFundMe crowdfunding campaign.
On June 2, 2021, Cummings filed an opposition, arguing that he did not have the ability to pay the attorney fees and costs. He contended he had less than $100,000 cash in his accounts and no other significant assets, and he had monthly expenses of approximately $3,175. Further, Cummings contended his financial and personal circumstances had recently changed as he had left his band and record label, was now in legal disputes with both, and faced an uncertain financial future as a solo artist. Cummings provided two declarations, his own and another from his business manager, attesting that of the $180,000 in GoFundMe proceeds raised as of June 2021, "all the money [was] accounted for" to cover existing debts, including studio bills and legal fees. However, no accounting of such spending was provided. Cummings' business manager attested that the additional money Cummings made from merchandise sales and shows was "just enough to get by."
The trial court held a hearing on June 14, 2021. At the outset, the court indicated that there was a dispute "as to the amount of the fees, and then certainly on the issue on the ability to pay." Counsel for Johns noted that Johns was now seeking an increased award of $181,042, as she had incurred additional attorney fees in addressing Cummings' continued violations of the restraining order.
Johns' counsel then addressed the parties' respective abilities to pay the award. He argued that Cummings had $97,996.40 in cash, according to his March 2021 income and expense declaration. He also stated it was unclear whether this amount overlapped with the approximately $180,000 raised by Cummings through the GoFundMe campaign. In addition, counsel for Johns stated that Cummings' Wells Fargo Bank statement showed that on February 1, 2020, he transferred $150,000 from that account to his City National Bank account. Despite a court order, Cummings refused to then hand over his City National Bank statements. In looking at various bank statements, counsel argued "it's clear that in February he had somewhere around [$]200 to [$]300,000 under his control." Moreover, although Cummings failed to produce any documentation of his business interests, his 2019 tax returns showed royalty income of $307,000.
Cummings' financial documents were not filed in the trial court for confidentiality purposes, but Cummings did not dispute Johns' characterizations of their contents.
Cummings' counsel conceded Cummings was making "some money" from royalties through his merchandise, and he had done a handful of shows in recent months, but he contended Cummings' income stream was not significant and that he was spending more on legal fees than he was earning. Cummings' counsel further asserted that he had billed about one-third of the amount Johns' counsel had billed in the parties' litigation.
Following the hearing, the court issued a minute order awarding fees to Johns under section 6344 "after she prevailed in her restraining order application" against Cummings. The court noted its obligation to consider ability to pay under section 6344. The court stated that the fact that the party requesting fees has resources from which it could pay its own fees was not a bar to an order that the other party pay the requested fees. The court noted that "[t]he dispute here was rendered more complicated because of [Cummings'] continued (mainly online) conduct before, during and after the DVPA proceedings." The court further stated that "[t]he parties go back and forth about all the issues, including their respective abilities to pay and the culpability for the conduct in question and the conduct of the trial, but this Court takes a broader approach to the matter at hand. The underlying conduct in question was out of control and led to the issuance of a restraining order. [Johns] should not have to pay for that privilege."
The court declined to award Johns the full $181,042 award she requested but awarded her $97,500 under section 6344. The court found Johns' counsel "did a strong job of presenting petitioner's case; his hourly rate of $650 while on the high side was reasonable under the circumstances and is at market for such an experienced attorney on the Westside of Los Angeles; and the work billed was necessary and appropriate under the circumstances. The Court is effectively awarding 150 hours of legal work at the going billing rate of counsel. This Court is well familiar with the disputes in question and believes 150 hours is a reasonable amount of time under the circumstances for the work involved, including a five-day trial and numerous other related disputes." The court declined to award any fees under section 271.
On July 6, 2019, Cummings filed a notice of appeal from the June 14, 2021 order.
Cummings appears to challenge the constitutionality of the DVRO in a footnote in his opening brief on appeal. However, Cummings appealed solely from the June 14, 2021 order awarding attorney fees and costs, not the trial court's December 22, 2020 order granting the DVRO request. Any purported appeal from the DVRO granted six months earlier would have been untimely. (See Cal. Rules of Court, rule 8.104(a)(1).)
Section 6344 provides for awards of attorney fees and costs in support of the purpose of the Domestic Violence Prevention Act (DVPA, §§ 6200 et seq.) "to prevent acts of domestic violence, abuse, and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence." (§ 6220; see Oriola v. Thaler (2000) 84 Cal.App.4th 397, 406.) Subdivision (a) of former section 6344 provided: "After notice and a hearing, the court may issue an order for the payment of attorney's fees and costs of the prevailing party" on a motion under the DVPA. Former section 6344, subdivision (b) provided: "In any action in which the petitioner is the prevailing party and cannot afford to pay for the attorney's fees and costs, the court shall, if appropriate based on the parties' respective abilities to pay, order that the respondent pay petitioner's attorney's fees and costs for commencing and maintaining the proceeding. Whether the respondent shall be ordered to pay attorney's fees and costs for the prevailing petitioner, and what amount shall be paid, shall be determined based upon (1) the respective incomes and needs of the parties, and (2) any factors affecting the parties' respective abilities to pay." An order to pay attorney fees under former section 6344 is also subject to the overarching requirement for any award of fees under the Family Code that the court "first determine that the party has or is reasonably likely to have the ability to pay." (§ 270.)
The Legislature amended section 6344, effective January 1, 2023, to provide as follows: "(a) After notice and a hearing, a court, upon request, shall issue an order for the payment of attorney's fees and costs for a prevailing petitioner. [¶] (b) After notice and a hearing, the court, upon request, may issue an order for the payment of attorney's fees and costs for a prevailing respondent only if the respondent establishes by a preponderance of the evidence that the petition or request is frivolous or solely intended to abuse, intimidate, or cause unnecessary delay. [¶] (c) Before a court awards attorney's fees and costs pursuant to this section, the court shall first determine pursuant to Section 270 that the party ordered to pay has, or is reasonably likely to have, the ability to pay." (Stats. 2022, ch. 591, § 2.) Former section 6344 applies in the instant case, as the trial court's order awarding attorney fees and costs was made on June 14, 2021, well before the effective date of the amendments. (See § 4, subd. (e) ["If an order is made before the operative date, . . . the validity of the order . . . is governed by the old law and not by the new law"].)
Cummings first contends the trial court failed to consider his ability to pay in making its order. We disagree. The court was not required to make express written findings regarding the parties' abilities to pay either under section 270 or former section 6344. (See Gunther v. Alaska Airlines, Inc. (2021) 72 Cal.App.5th 334, 361 ["'there is no general rule requiring trial courts to explain their decisions on motions seeking attorney fees'"].) In the absence of a statement of decision (which is not required for rulings on attorney fees motions), we presume the court made the necessary findings to support its ruling. (See In re Marriage of Hebbring (1989) 207 Cal.App.3d 1260, 1274.) "'The remaining issue on appeal is then whether there is "substantial evidence" to support the lower court's "implied findings."' [Citation.]" (Ibid.) "[T]rial courts enjoy broad discretion in awarding attorneys' fees in marital proceedings." (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 314-315.)
In his appellate briefing, Cummings contends the trial court also failed to consider "principles of equity," specifically Johns' culpability for the underlying conduct that led to the DVRO proceedings, in awarding attorney fees under former section 6344. This argument was not raised in the trial court and is therefore forfeited on appeal. (Cabatit v. Sunnova Energy Corp. (2020) 60 Cal.App.5th 317, 322.) Further, the contention ignores the court's finding that Johns was the prevailing party entitled to a DVRO based on abuse committed by Cummings.
The parties litigated the issue of their respective abilities to pay for Johns' attorney fees, and the court made it clear at the hearing as well as in its order that "the ability to pay" was a contested issue. We conclude substantial evidence supports the court's implied finding that Cummings had the ability to pay. In his income and expense declaration from March 2021, Cummings reported he had almost $100,000 in cash and $3,175 in monthly expenses. Cummings stated he had "Other Income," specifically "royalties/fundraiser," and to see "Attached." Although nothing was attached to his declaration, his prior declaration from November 2020 indicated his "Other Income" of "royalty distributions, not consistent" amounted to $12,997 a month. Regardless of whether the GoFundMe amount of $180,000 included the approximately $100,000 cash assets listed in his declaration, it provided at the very least an additional $80,000 available to Cummings. There also appeared to be a significant amount (potentially around $150,000 that was transferred from the Wells Fargo account) in his City National Bank account that was never disclosed to Johns despite the court's order directing disclosure of those bank statements. Furthermore, Cummings failed to produce any documentation of his business interests, and his tax returns showed royalty income of $307,000. Cummings did not refute the proof of his assets and income that was proffered by Johns. Rather, in a conclusory matter, Cummings and his business manager submitted declarations stating that all but $100,000 was spent and accounted for. There was substantial evidence before the trial court to conclude that Cummings had the ability to pay the $97,500 award.
We need not discuss the evidence of Johns' relative inability to pay her attorney fees, which would be relevant only if the court had issued the award of fees under former section 6344, subdivision (b), after deeming Johns unable to afford the fees. The court noted in its order that the fact that the moving party has sufficient resources to pay the award is not a bar to ordering the other party to pay. Thus, it appears the court's award was issued under former section 6344, subdivision (a), under which the court had the discretion to award fees to Johns, as the prevailing party, without considering her relative ability to pay.
Cummings next contends the amount of the attorney fees awarded to Johns is unreasonable. "We apply an abuse of discretion standard in reviewing the amount of an attorney fee award. [Citation.] '[A]n experienced trial judge is in a much better position than an appellate court to assess the value of the legal services rendered in his or her court, and the amount of a fee awarded by such a judge will therefore not be set aside on appeal absent a showing that it is manifestly excessive in the circumstances.' [Citation.] 'The only proper basis of reversal of the amount of an attorney fees award is if the amount awarded is so large or small that it shocks the conscience and suggests that passion and prejudice influenced the determination.' [Citation.]" (Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1509 (Loeffler).)
Johns submitted detailed billing records to the trial court. She initially requested $155,192.35 in attorney fees, but at the hearing, her counsel noted that Johns was now seeking $181,042. The court then awarded Johns $97,500, an amount significantly less than requested.
The court considered factors such as the quality of her counsel's representation, the complexity of the issues, and the results obtained after a contested five-day evidentiary hearing. The court found that Johns' counsel "did a strong job of presenting [the] case; his hourly rate of $650 while on the high side was reasonable under the circumstances and is at market for such an experienced attorney on the Westside of Los Angeles; and the work billed was necessary and appropriate under the circumstances." The court indicated it was "effectively awarding 150 hours of legal work at the going billing rate of counsel." The court also stated it was familiar with the disputes in question and believed 150 hours to be a reasonable amount of time under the circumstances for the work involved, including a five-day trial and numerous other related disputes. We find no abuse of discretion in this approach. (See In re Marriage of Ananeh-Firempong (1990) 219 Cal.App.3d 272, 280 [holding "'[t]he knowledge and experience of the trial judge afford a sufficient basis for fixing the amount of a lawyer's fee'" and affirming fee award where "the court fixed the amount of fees based on its own experience as is evident from the court's finding that Wife's counsel had made 19 court appearances, participated in a four day trial and been well prepared"]; Frank v. Frank (1963) 213 Cal.App.2d 135, 137 ["[t]he knowledge and experience of the trial judge afford a sufficient basis for fixing the amount of a lawyer's fee"].) The court's award is neither manifestly excessive in the circumstances nor does it shock the conscience. (Loeffler, supra, 174 Cal.App.4th at p. 1509.)
DISPOSITION
The order is affirmed. Johns is awarded her costs on appeal.
We concur: CURREY, Acting P. J., COLLINS, J.
[*]Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.