Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Santa Barbara Colleen K. Sterne, Commissioner
Frank C., in pro. per., for Plaintiff and Appellant.
Price, Postel & Parma, Penny Clemmons, for Defendant and Respondent.
COFFEE, J.
Frank C., as guardian ad litem for his daughter, appeals from an order after judgment awarding attorneys' fees to respondent William P. and against Frank C. in the amount of $52,475. Frank C. contends that the trial court had no authority to impose attorneys' fees against him because, as guardian ad litem, he was not a party. We affirm.
FACTS
Frank C. and Robin B. have a daughter (the child). In 2003 Frank C. and Robin B. separated. Thereafter, Robin B. became romantically involved with William P. In May of 2006, Robin B. obtained a default judgment against Frank C. in the dissolution action, after an order imposed terminating sanctions against him.
In March of 2006, Frank C. initiated this action, requesting a temporary restraining order and an injunction to protect the child from harassment in which he alleged that William P. had engaged. (Code Civ. Proc., § 527.6, subd. (a).) The child was four years old. Frank C. signed the request for injunction as the child's attorney. The request identified the "conduct that harassed you" as "Sexual Assault – Lewd Act with Minor . . . ." It requested attorneys' fees and costs and an order that William P. stay away from "[m]y home," "[m]y children's school or child care," "[m]y vehicle," and "[m]y school and/or day care."
All statutory references are to this code unless otherwise stated.
The court granted Frank C.'s request to be appointed guardian ad litem for the child. Neither Robin B. nor William P. were served with the request for appointment or the order appointing Frank C. as guardian ad litem. William P. filed an answer in which he denied Frank C.'s allegations, and requested attorneys' fees.
The court conducted an evidentiary hearing over several days. On the first day of the hearing, William P. asserted that Frank C. had not been appointed as guardian ad litem. The court stated, "None has been appointed today." The court had in fact previously signed the order appointing Frank C. as guardian ad litem, but Frank C. did not bring that order to the attention of the court. When William P.'s counsel later received a copy of the order, she objected to Frank C.'s appointment on the ground that neither William P. nor Robin B. had been served with it. Frank C. responded that the objection could be dealt with later and was not pertinent to the proceeding, because he was an attorney and could represent the child in that capacity in any case. The court reserved the issue for later resolution, "until either the end of the case or a more convenient time during the course of this hearing." The issue was not raised again during the evidentiary hearing.
In a written order after hearing on September 26, 2006, the court denied appellant's request for a restraining order. The court found no clear and convincing evidence of improper conduct by William P. The court observed that "the Guardian ad litem, also acting as Plaintiff's attorney in this matter, has referred to this proceeding as 'his' case. On the other hand, he has argued strenuously that this 'is the minor's case,' and that there is only one factual issue in the case, to wit: the veracity of the minor's disclosures. . . . With regard to certain items of evidence the court has agreed with him, as to others it has not." The court found that the official investigation into the child's disclosures was "affected by ongoing lobbying and participation by [Frank C.]," and that "[Frank C.] is a very energetic and persuasive person, and he guided the events of [the child's] disclosure and the subsequent investigation to the detriment of its thoroughness." The court stated that Frank C.'s role in the disclosures is "uncertain, but it is concerning."
The court's order expressed concern that Frank C. had bathed and slept with the child nude or nearly nude, and had encouraged the child to repeat her disclosure conduct to a wide audience, "which [was] suggestive more of building a case than attending to the child's needs for sensitive handling of such matters." The court rejected Frank C.'s argument that his conduct was irrelevant, finding that "this TRO stands in direct relationship to a serious high conflict dissolution case. [Frank C.] cannot hide behind guardian ad litem status to foreclose the court from considering the totality of the family situation when ruling on this order." On it's own motion, the court dissolved the order appointing Frank C. guardian ad litem. The court advised the parties that it was considering awarding attorneys' fees to William P. The court did not specify whether fees would be imposed against the child or against Frank C. personally. The court wrote, "As to fees, the court questions the motivation that led to the filing of this action, and will consider an award of fees and costs to the [William P.]. Declarations in support and opposition to such a finding may be submitted, and the court will issue its determination as to the amount of fees and costs, if any are to be awarded, thereafter."
On October 10, 2006, William P.'s counsel filed a declaration in support of his request for attorneys' fees, stating that counsel had spent about 260 hours defending the matter, for a total fee of $65,000. The declaration did not specify against whom fees were requested. Frank C. filed no opposition.
On December 12, 2006, the court ordered, "Defendant [William P.] is awarded fees and costs in the amount of $52,475.00 against plaintiff [Frank C.], Guardian ad Litem on behalf of [the child]."
DISCUSSION
On appeal, we review the determination of the legal basis for an award of attorney fees de novo as a question of law. (Leamon v. Krajkiewcz (2003) 107 Cal.App.4th 424, 431.) If there is a legal basis to award fees, we review the trial court's award for abuse of discretion. (Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1169.) We review findings of fact to determine if they are supported by substantial evidence. (People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681.) If the evidence supports the findings, we then review the trial court's conclusions for an abuse of discretion. (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1143-1144.) We will not disturb the trial court's determination unless it is arbitrary, capricious and exceeds the bounds of reason. (Link v. Cater (1998) 60 Cal.App.4th 1315, 1321.)
"A person who has suffered harassment" may obtain expedited injunctive relief pursuant to section 527.6. "The prevailing party in any action brought under this section may be awarded court costs and attorney's fees, if any." (§ 527.6, subd. (i).) A minor may bring an action under section 527.6 only through a guardian ad litem. (§ 372, subd. (a).) "A guardian ad litem is not a party to the action, but merely a party's representative." (In re Christina B. (1993) 19 Cal.App.4th 1441, 1453.) "[A] judgment may not be rendered for or against a guardian ad litem, but only for or against the party he represents." (In re Cochem's Estate (1952) 110 Cal.App.2d 27, 30.) "In making the determination concerning appointment of a particular guardian ad litem for [the purpose of requesting a restraining order to prohibit harassment] the court shall consider whether the minor and the guardian have divergent interests." (§ 374.)
When Frank C. requested appointment as guardian ad litem, he did not disclose his divergent interest in the ongoing high conflict dissolution case. He did not serve William P. or the child's mother with his request for appointment and did not serve them with a copy of the order appointing him as guardian ad litem. Although there is no requirement that a parent be given notice of a request for appointment as guardian ad litem, service is the better practice (Williams v. Superior Court (2007) 147 Cal.App.4th 36, 55) and would almost certainly have brought Frank C.'s disqualifying conflict of interest to light. When Robin B. learned of the appointment, she objected to it. Frank C. asked the court to delay its ruling on the objection until later in the proceedings, and the court did. In its order after hearing, the court dissolved the appointment. In this way, Frank C. had retained his nominal status as guardian ad litem until William P. had incurred more than $50,000 in attorneys' fees.
In these circumstances, section 527.6, subdivision (i) provided a legal basis for the court's award of attorneys' fees against Frank C. because he acted as a party. The evidence supports the trial court's implicit finding that Frank C. acted as a party and did not actually act as the minor's representative on behalf of her interests. As the court observed in its order after hearing, Frank C. "referred to this proceedings as 'his' case," "he cannot hide behind guardian ad litem status," and his conduct was "suggestive more of building a case than attending to the child's needs for sensitive handling of such matters." The court's finding that Frank C. appeared as a party is implied from the order that imposed attorneys' fees against Frank C. as a party, pursuant to section 527.6. We are required to presume all findings to support the order. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) We conclude that the trial court acted within its discretion when it awarded fees against Frank C. as a party pursuant to section 527.6.
We also reject Frank C.'s contention that the amount of fees awarded by the trial court was unreasonable. The claimed amount was supported by affidavit. "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.'" (Serrano v. Priest (1977) 20 Cal.3d 25, 49.)
We affirm the judgment. Costs on appeal are awarded to respondent.
We concur: GILBERT, P.J., YEGAN, J.