A Failure to Request Attorney’s Fees Does Not Result in a Forfeiture of the Ability to Seek Attorney’s Fees After a Family Law Court Issues a Domestic Violence Restraining Order

Sina Faton filed a Domestic Violence Prevention Act (“DVPA”) action against Bashar Ahmedo. Both parties represented themselves. The family law court granted the Domestic Violence Prevention Act against Ahmedo. Ahmedo subsequently obtained a family law attorney and filed a motion for reconsideration. After reconsidering the matter, the family law court reissued the Domestic Violence Restraining Order against Ahmedo. Faton, who also retained a family law attorney when Ahemdo filed his reconsideration motion, thereafter filed a motion for attorney’s fees under Family Code section 6344, which was granted. On appeal, Ahmedo challenged the order requiring him to pay attorney’s fees.

Family Code section 6344 states, “after notice and a hearing, the court may issue an order for the payment of attorney’s fees and costs of the prevailing party.” Ahmedo’s family law lawyer argued that Faton forfeited her right to request attorney’s fees because she failed to file an amended standard form Domestic Violence Restraining Order petition incorporating an attorney’s fees request prior to the evidentiary hearing on her Domestic Violence Restraining Order petition, but instead waited until after issuance of the Domestic Violence Restraining Order to file a request for fees. The Court of Appeal found that, because the prevailing party attorney’s fees were statutorily authorized, Faton’s failure to ask for them in her Domestic Violence Restraining Order petition prior to the evidentiary hearing did not constitute a forfeiture of her right to seek them after the family law court issued the Domestic Violence Restraining Order in her favor.

Furthermore, Ahmedo’s family law lawyer argued that section 6344 did not permit an attorney’s fees request to be made after the conclusion of the Domestic Violence Restraining Order evidentiary hearing. The Court of Appeal found that this argument was not supported by the statutory language or legislative intent. Section 6344 requires only “notice and a hearing,” and contains no language suggesting that fees must be denied simply because the notice and hearing were provided after, rather than before, the evidentiary hearing on the Domestic Violence Restraining Order request. In consideration of the plain meaning of the statute, section 6344 simply requires notice and a hearing, both of which were afforded. The Court of Appeal was not persuaded by Ahmedo’s family law lawyer’s suggestion that allowing the notice and hearing concerning attorney’s fees to occur after adjudication of the Domestic Violence Restraining Order request undermined the legislative goal of providing streamlined mechanisms for handling Domestic Violence Restraining Order petitions. The Court of Appeal reasoned that the Legislature’s intent was to prevent domestic violence and to separate persons involved in this violence pending resolution of the causes of the violence, and this intent was advanced through expeditious issuance of restraining orders. The question of whether attorney’s fees should be granted to the prevailing party did not require expedient resolution because it was the issuance of the Domestic Violence Restraining Order, not the granting of attorney’s fees, that ameliorated the threat of violence. Thus, the violence prevention and protection goals underlying the Domestic Violence Restraining Order statutory scheme did not require that an attorney’s fees request be raised and adjudicated at the same time as the merits of the Domestic Violence Restraining Order request. Based on the foregoing, the Court of Appeal agreed with Sina’s family law attorney and affirmed the family law court’s order requiring Ahmedo to pay attorney’s fees.

Faton v. Ahmedo (2015) 236 Cal. App. 4th 1160