Mitchell v. Johns CA2/2

DISCUSSION

Appellant contends that the trial court violated his statutory and due process rights by ordering that he pay respondent’s attorney fees of $2,500 without first ascertaining whether he had the financial ability to pay such fees. As noted above, respondent’s attorney’s declaration stated that attorney fees were being sought pursuant to Family Code section 271.1 It is not at all clear to us why attorney fees would be requested under the Family Code. Appellant points to nothing in the record indicating that he filed his petition for a temporary restraining order and permanent injunction in a pending family law case. Indeed, appellant wrote in his petition that he had “[n]o relationship” with respondent. Appellant is correct that pursuant to Family Code section 271, a trial court is required to take into consideration a party’s ability to pay attorney fees. But Code of Civil Procedure section 527.6, pursuant to which appellant brought his petition and pursuant to which the trial court found no harassing conduct, has its own attorney fees provision. Subdivision (r) states: “The prevailing party in any action brought under this

1 Family Code section 271, subdivision (a)…