Opinion
H047913
03-08-2022
SERGEY FIRSOV, Plaintiff and Appellant, v. CONSTANTIN ZHUKOVSKY, Defendant and Respondent.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 19CH008808
MEMORANDUM OPINION
GROVER, ACTING P.J.
We resolve this case by memorandum opinion under California Standards of Judicial Administration, Title 8, Standard 8.1. (See also People v. Garcia (2002) 97 Cal.App.4th 847, 853-855.)
This is one of two appeals arising from Sergey Firsov's unsuccessful civil harassment restraining order petition against Constantin Zhukovsky. In the other appeal (case No. H048544), he challenges the trial court's denial of his motion to disqualify opposing counsel. Here he appeals an award of attorney fees that followed his voluntary dismissal of the action.
Firsov represented himself in the trial court, as he does on appeal. His application for a restraining order alleged he is entitled to the requested order because Zhukovsky is an attorney who agreed to represent him but later refused. He also alleged Zhukovsky improperly disclosed confidential information about him. Zhukovsky, through counsel, filed a response denying he ever agreed to represent Firsov and denying ever having 1 possessed, let alone distributed, any of Firsov's confidential information. The response further noted that none of the alleged conduct met the standard for issuing a civil harassment restraining order. The matter was set for a contested hearing, but on the day of the hearing Firsov dismissed the action.
Zhukovsky then moved for an award of attorney fees. The motion was supported with a declaration from his attorney that stated the time and amounts the records reflected in appended billing records were reasonable and necessary to defend against Firsov's petition. The trial court granted the motion, awarding Zhukovsky fees of $10, 295.
Code of Civil Procedure section 527.6, subdivision (s) allows a trial court to award attorney fees to the prevailing party in a civil harassment proceeding. That statute gives the trial court discretion to decide whether to award fees, and we review the decision for abuse of discretion. Under that highly deferential standard, we will reverse the trial court's decision only if it is arbitrary or unreasonable. (See PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.)
The trial court has discretion under the statute to determine whether the party moving for fees prevailed in the action. (See Galan v. Wolfriver Holding Corp. (2000) 80 Cal.App.4th 1124, 1128 [where the applicable statute does not define the term prevailing party, trial court has discretion to determine which party prevailed].) Having determined Zhukovsky was the prevailing party because Firsov dismissed his petition on the day set for hearing, the trial court then had broad discretion to decide what amount of fees should be awarded. (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th 1084, 1095.)
Firsov has not shown the trial court acted arbitrarily or unreasonably in determining that Zhukovsky prevailed in the action, nor in deciding that $10, 295 is an appropriate amount for the award. Firsov argues the court should not have awarded fees because Zhukovsky is himself a lawyer and one lawyer cannot represent another lawyer in a civil harassment action. Firsov cites no authority to support that proposition and we are aware of none. He further asserts the fee motion should have been denied because 2 Zhukovsky and his attorney made false statements to the court and because the attorney has confidential information about him. But Firsov has not pointed to any evidence in the record showing false statements were made or that Zhukovsky possessed confidential information.
Firsov also argues the trial court erred by not considering his financial circumstances (specifically, that he was granted a waiver from paying court costs) in determining what amount of attorney fees was reasonable. While a court is permitted- though not necessarily required-to consider a party's financial condition in determining the reasonable amount of fees (Garcia v. Santana (2009) 174 Cal.App.4th 464, 470), on appeal we presume the trial court exercised its discretion according to law, absent evidence to the contrary. (McDermott Will & Emery LLP v. Superior Court (2017) 10 Cal.App.5th 1083, 1103.) Even assuming the trial court was required to consider Firsov's financial condition in setting the amount of fees, nothing in the record shows it failed to do so. Because the record is silent on that point, we must presume the trial court considered all factors required by law and decided that, on balance, the amount awarded was reasonable.
Having reviewed the record and Firsov's brief, we find no abuse of discretion in awarding attorney fees to Zhukovsky as the prevailing party in this civil harassment action. We will therefore affirm the order.
DISPOSITION
The order is affirmed. Costs are awarded to respondent by operation of rule 8.278, subdivision (a)(1) of the California Rules of Court. 3
WE CONCUR: Lie, J., Wilson, J. 4