Filed 4/27/22 Nicolino v. Rey CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on 

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purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

VENUS NICOLINO,

Plaintiff and Appellant, 

v.

SAMANTHA REY,

Defendant and Respondent.

 B307752

 (Los Angeles County

 Super. Ct. No. 

20STRO02579)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Joshua D. Wayser, Judge. Affirmed.

Gusdorff Law and Janet Gusdorff; Robert Freund Law and 

Robert S. Freund for Plaintiff and Appellant.

Lefkowitz Law and Jamie Lefkowitz for Defendant and 

Respondent.
2

Petitioner and appellant Venus Nicolino (Nicolino) sought a 

civil harassment restraining order against her erstwhile personal 

assistant and personal manager, respondent Samantha Rey 

(Rey). Nicolino accused Rey of, among other things, being 

obsessed with Nicolino and accessing Nicolino’s electronic 

accounts after her employment ended. In response, Rey filed a 

declaration describing her employment with Nicolino, including 

assertions related to Nicolino’s mental health and marriage. The 

trial court denied Nicolino’s request for a restraining order—a 

ruling Nicolino never appealed. But Nicolino subsequently filed a 

motion to seal, essentially in toto, the declaration Rey filed in 

opposition to the restraining order request and Rey filed a motion 

for attorney fees for prevailing against Nicolino. The trial court 

denied the motion to seal and granted the motion for attorney 

fees, and we consider the correctness of both of these rulings.

I. BACKGROUND

A. Background and Petition

Rey began working for Nicolino, a Doctor of Clinical 

Psychology who pursued a career in television and media, in May 

2017. Approximately three years later, in February 2020, her 

employment ended. Rey and Nicolino disagree about the 

circumstances under which she left her employment, with Rey 

contending she quit, and Nicolino contending she terminated 

Rey’s employment.

Some three months after the professional relationship 

ended, Nicolino sought a civil harassment restraining order 

against Rey. Nicolino’s petition for the order asserted sundry 

alleged wrongs: Rey verbally abused her during the majority of 

Rey’s employment, Rey learned personal information about 
3

Nicolino and threatened to use the information against her, and 

Rey violated Nicolino’s privacy by accessing her office, 

belongings, and phone without permission. Nicolino further

contended that after Rey stopped working for her, Rey continued 

to harass her, stalked her once, and accessed digital accounts and 

files belonging to Nicolino.

B. The Temporary Restraining Order and Aftermath

The trial court issued a temporary restraining order 

against Rey pending the hearing on Nicolino’s petition. The 

temporary restraining order protected Nicolino, her husband, and 

three minors.

Prior to the hearing on the petition for a restraining order, 

Nicolino filed an application for an order to show cause re 

contempt. In support of the application, Nicolino filed a 

declaration asserting Rey accessed her computer and uploaded a 

new document to her production company’s Google Docs account, 

in violation of the temporary restraining order. Nicolino also 

alleged Rey obsessed over her relationship with Nicolino and 

attached several notes she previously received from Rey to 

support assertions that Rey caused Nicolino to fear for her safety. 

Nicolino asserted that, as a Doctor of Clinical Psychology, she 

“know[s]” Rey’s behavior is “Borderline Personality Disorder with 

Anger and Behavioral Instability.”

C. Rey’s Response and Declaration

Rey filed a form response opposing the request for a 

restraining order. In support thereof, Rey filed a 22 page 

declaration describing her dealings with Nicolino. The 

declaration attached approximately seventy pages of exhibits.
4

In her declaration, Rey described her employment with 

Nicolino, including the tasks she performed as Nicolino’s personal 

assistant. She described Nicolino as a “very, very difficult boss.” 

Rey contended Nicolino’s declaration was permeated by 

falsehoods and provided what she referred to as background 

information intended to establish Nicolino was not credible and 

had a motive to lie about Rey. Among this information were 

assertions that Nicolino screamed at Rey regularly, was 

emotionally volatile, psychologically abused Rey, and involved 

Rey in intimate aspects of her life. In support of the last point, 

Rey declared Nicolino had repeatedly threatened to harm herself

and had enlisted Rey’s help in facilitating Nicolino’s alleged 

extramarital affairs.

Rey’s declaration also described Nicolino’s attempts to 

convince her to sign a non-disclosure agreement after her 

employment ended. In doing so, she described and attached a 

cease and desist letter she received from counsel for Nicolino that 

claimed Rey violated the Computer Fraud and Abuse Act (adding 

that violations may result in life imprisonment) and demanded

Rey sign a confidentiality agreement with a $200,000 liquidated 

damages clause. Rey also explained Nicolino had filed another 

lawsuit against her after requesting the restraining order and 

attached a copy of the complaint in that action.

The declaration itself incorporated images of 

communications between Nicolino and Rey to illustrate Rey’s 

contentions. The exhibits to the declaration included, among 

other things, many text conversations between Rey and Nicolino, 

and some photographs depicting the latter.
5

D. Hearing on the Petition

The trial court held a hearing on the petition over the 

course of two days. The substance of the witnesses’ testimony is 

largely irrelevant for our purposes in this appeal. We describe 

only the aspects of the hearing that bear upon the matters at 

issue, and most of these pertain to the trial court’s remarks and 

its ruling.

During the course of the hearing, the trial court referred to 

Rey’s declaration and its exhibits numerous times. The court 

stated more than once that it had read the papers, and 

specifically said it had “read every text message.” Early in the 

hearing, Nicolino argued Rey’s actions in the litigation—which at 

that point amounted to the filing of her declaration—underscored 

the need for a restraining order because of the way Rey used 

Nicolino’s confidential information. In response, the trial court 

said it was “such a tricky issue” with “First Amendment issues 

and . . . litigation privilege issues.” The court noted there were 

issues about “course of conduct” and mused that it might not 

reach the First Amendment or the litigation privilege because 

“[i]t’s all either part of the pattern of a course of conduct, and it’s 

all sort of lined up and it’s reflective of something, or it doesn’t.”

During testimony regarding some of the assertions in Rey’s 

declaration, the trial court urged the parties to touch upon the 

issues generally, without getting into unnecessary details. In 

general remarks, the court stated: “Look, I need to be clear about 

something so the record can go transparent on an issue. I have 

read each and every piece of paper in this case. As a result of 

having done that, I understand the subject matter of the issues. I 

am exercising my discretion because I do not need to further hear 

about it because I understand it and it wouldn’t be appropriate, 
6

under the circumstances, to further inquire about it because I 

understand it. And the situation is difficult enough as is that I 

wish to just keep the record limited in that respect because I 

don’t need any further information on that subject matter. I 

consider it not necessary for today’s purposes.”

The court adopted largely the same posture during specific 

lines of questioning. When Nicolino was asked about alleged 

threats of self harm, the trial court noted it wanted to “try to 

avoid the intimate” details and said “[i]f I don’t need to know 

about it, I don’t need to know about it; but you may certainly ask 

questions about it.” Later, when Rey asked Nicolino whether she

told Rey about claimed extramarital relationships with other 

men, Nicolino objected. The court allowed counsel to flesh “this”

out only a little further, believing it was fair to ask whether the 

information that Nicolino alleged Rey weaponized was 

information Nicolino voluntarily gave her.1

At the end of the first day of the hearing, Nicolino asked 

the court to consider whether “some of the more colorful 

information” in Rey’s declaration should be excluded from the 

public record until the court issued a ruling or, failing that,

should be sealed because the information was irrelevant to the 

1 At another point, Nicolino asked the court to clarify why 

alleged relationships with other men were relevant to the issues 

before the court. The court responded, “[I]t’s the heart of the 

issue . . . . this case . . . does center around . . . whether the 

information was weaponized or not. And then I have to figure 

out, if that information was weaponized, does that meet the 

standard?” The court also overruled Nicolino’s objection to a 

question about whether Rey considered telling Nicolino’s 

husband about the alleged affairs because they were “right at the 

heart of it.”
7

issues. The court explained its view of the issue on the record: 

“[I]t’s a rabbit hole for me, and I prefer not to go down rabbit 

holes because of the First Amendment issues and litigation 

privilege issues. [¶] . . . [¶] I thought about it, and . . . I 

think . . . right now you would have to bring an application to file 

it under seal. That’s the easiest answer. But I think the answer 

is it’s tricky for me under the case law to rely on litigation 

content, generally . . . . [¶] And it’s a very complicated thing to 

have to think about because . . . the pleadings were very personal 

and information was shared. And it was done with strategy and 

with thought. And I’m careful about that because I have to be 

careful. I don’t know that I could touch that right now. But I 

understand your argument.” The court acknowledged that 

Nicolino believed “her absolute wors[t] nightmare has happened”

but recognized that must be balanced against rights of free 

speech and access.

Nicolino asked if she could have the opportunity to file an 

application to seal before the declaration was placed in the public 

record. The court noted, and Rey confirmed, that the declaration 

had already been filed and was thus already part of the public 

record. The trial court then said, “I can’t touch it without an 

application to seal.”

The court took the matter under submission and issued a 

minute order denying the petition for a restraining order. The 

court’s order recognized the parties “had a close professional and 

personal relationship for several years” and stated that “[c]ertain 

of [r]espondent’s conduct during that time was questionable, but 

her conduct ultimately did not rise to the level of harassment 

that is required for a [Civil Procedure] section 527.6 injunction to 

issue.”
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E. Subsequent Motions

1. Nicolino’s motion to seal 

Approximately one month after the trial court’s ruling, 

Nicolino filed a motion to seal Rey’s declaration. The version of 

the declaration as proposed to be sealed redacted essentially the 

entirety of Rey’s declaration and all of its exhibits. More

specifically, the proposed redacted version of Rey’s declaration 

left visible only the caption page, the footer on each page of the 

declaration reflecting the page number and the identity of the 

document, Rey’s averment under penalty of perjury that her 

statements are true and correct, and the proof of service. It 

redacted the entirety of every exhibit, leaving visible only page 

numbers and exhibit cover sheets.

The sealing motion argued there was an overriding interest 

in protecting Nicolino’s private and confidential information and 

contended the declaration included “graphic, detailed, malicious, 

and false allegations and images regarding highly sensitive, 

potentially embarrassing information about [Nicolino] and her 

family, and . . . confidential conversations related to [Nicolino’s] 

medical history.” Nicolino further contended none of the 

information she sought to seal addressed any of the elements 

relevant to the trial court’s ruling on the restraining order. 

Nicolino argued her overriding interest in her privacy would be 

prejudiced if the record were not sealed, and she represented her 

request to seal the declaration was narrowly tailored. In a 

footnote, she requested an opportunity to resubmit the motion 

and requested “guidance from the Court” if the court were not 

inclined to grant the requested relief.

Nicolino’s attorney submitted a declaration in support of 

the motion to seal. The declaration asserted Nicolino applied for 
9

a temporary restraining order in part because Rey told third 

parties she possessed personal, confidential, and sensitive 

information about Nicolino and Nicolino was worried Rey would 

use that information maliciously. Nicolino’s attorney later 

submitted a supplemental declaration claiming the trial court 

repeatedly sustained her objections to Rey’s “attempts to 

introduce the irrelevant accusations in the Rey Declaration”

throughout the two day hearing on the request for a restraining 

order.

2. Rey’s motion for attorney fees

Rey filed a motion for attorney fees, seeking fees as the 

prevailing party under Code of Civil Procedure section 527.6. 

Rey sought $36,362.50 in fees and $1,564.43 in costs.

Nicolino opposed the motion for fees arguing the trial court 

should deny the motion because (1) the litigation would have 

been unnecessary if Rey had agreed to sign a non-disclosure 

agreement after her employment ended, and (2) Rey requested 

fees unrelated to the Code of Civil Procedure section 527.6 

petition. On the second point, Nicolino specifically argued the 

court should deny Rey approximately $4,000 in fees incurred in 

connection with Nicolino’s motion to seal because the motion was 

an ancillary post-judgment motion. Nicolino did not specifically 

address any other requested fees in her opposition.

3. The hearing on the sealing and fees motions

The trial court held a hearing on the motions to seal and for 

attorney fees. On the motion for attorney fees, Nicolino’s 

attorney argued fees were not warranted because the case was 

closely contested. In some contrast, the court explained it 
10

believed there were many complications in the case itself, 

including some related to Nicolino’s wealth, her cease and desist 

letter, and Rey’s background.

Nicolino, who was present at the hearing, wanted to read a 

statement to the court. She interrupted the court while the court 

was explaining its concern about her request, given the pendency 

of other litigation involving the same parties. The court 

ultimately determined it did not need to hear Nicolino’s 

statement, noting in part, “I appreciate that she has a different 

perspective and wants me to hear it, but we don’t --” Nicolino 

interrupted again, stating she did not have a different 

perspective, and saying it was “just a statement.” The court then 

said the following:

“Dr. Nicolino, you’re like a spoiled child. You . . . you let 

people in on your life, and then you get called on it because you 

sent an inappropriate letter that was heavy-handed and hamfisted, when you should have just called a friend and said there 

was a misunderstanding.” Nicolino protested, saying that was 

untrue and disagreeing with the court’s statement that she had 

her day in court. The court then added: “You are your own worst 

enemy. You can’t control yourself. You breached boundaries. 

You shared information. You sued someone. They called you on 

it. [¶] . . . [¶] And you’re getting the results. [¶] . . . [¶] I had a 

rational explanation, which I found persuasive, of what had 

happened, and you can’t seem to understand that, but I 

understood it. And you’re stuck on being the victim. I don’t 

think you’re the victim here.” Nicolino interjected many times 

during the these remarks by the court, and the court ultimately

deemed the matter submitted.
11

The trial court later issued a minute order denying the 

motion to seal and granting the motion for attorney fees. As to 

the motion to seal, the court found Nicolino’s request overbroad 

and not narrowly tailored because she sought to seal the entirety 

of Rey’s declaration. It noted there were two other pending civil 

matters brought by Nicolino and her production company against 

Rey, which related to the conduct alleged in the restraining order 

proceedings, and the court thought it would be imprudent to 

restrict or redact portions of the record in this case under the 

circumstances. The court further found Nicolino’s declaration 

provided an insufficient basis to justify the sealing.

As to the motion for attorney fees, the court found Rey was 

the prevailing party and opted to award fees under the statute in 

an exercise of its discretion. The court explained Nicolino made 

serious personal allegations against Rey, Rey fairly defended 

against the allegations, Nicolino had the ability to pay the fees, 

and Rey’s counsel did “an outstanding job” of protecting his 

client. The court found counsel’s hourly rate ($550) was within 

the range of similarly skilled litigators and took no general issue 

with counsel’s billing records. The court deducted a total of 1.4 

hours of time spent on collateral issues and other litigation 

between the parties and awarded Rey a total of $37,139.01 in 

fees.

II. DISCUSSION

The trial court did not err in denying the motion to seal 

because Nicolino did not narrowly tailor her request for sealing. 

Instead, Nicolino asked the court to seal the entire substance of 

Rey’s declaration, which included, among other things, Rey’s 

general description of her employment with Nicolino and 
12

statements to which Nicolino could have no legitimate privacy 

objection.

The trial court’s order awarding Rey attorney fees also does 

not warrant reversal. Though the record reflects the court’s 

patience was wearing thin with Nicolino’s interruptions at the 

pertinent hearing, our review of the entire record leaves us 

satisfied that the court’s order was an appropriate exercise of

discretion. Nicolino’s specific challenges to certain awarded fees 

fail because the fees were either authorized or un-objected-to

below.

A. The Trial Court Did Not Err in Declining to Seal 

Rey’s Declaration

California courts recognize a common law right of access to 

public documents, including court records. (Overstock.com, Inc. v. 

Goldman Sachs Group, Inc. (2014) 231 Cal.App.4th 471, 483 

(Overstock).) Court records are presumed to be “‘open to the 

public unless they are specifically exempted from disclosure by 

statute or are protected by the court itself due to the necessity of 

confidentiality.’ [Citations.]” (Ibid.)

California law also recognizes a First Amendment right of 

access to court proceedings and documents. (NBC Subsidiary 

(KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1208, 

fn. 25 (NBC); Overstock, supra, 231 Cal.App.4th at 484; In re 

Marriage of Nicholas (2010) 186 Cal.App.4th 1566, 1575

(Nicholas).) “A strong presumption exists in favor of public 

access to court records in ordinary civil trials. [Citation.] That is 

because ‘the public has an interest, in all civil cases, in observing 

and assessing the performance of its public judicial system, and 

that interest strongly supports a general right of access in 
13

ordinary civil cases.’ [Citation.]” (Nicholas, supra, 186 

Cal.App.4th at 1575.)

California Rules of Court, rules 2.550 and 2.551 set 

standards to further the right of access to court records. Rule 

2.550 provides that “[u]nless confidentiality is required by law, 

court records are presumed to be open.” (Cal. Rules of Court, rule 

2.550(c).) Rule 2.550 further provides a court may order a record 

sealed “only if it expressly finds facts that establish: [¶] (1) 

There exists an overriding interest that overcomes the right of 

public access to the record; [¶] (2) The overriding interest 

supports sealing the record; [¶] (3) A substantial probability 

exists that the overriding interest will be prejudiced if the record 

is not sealed; [¶] (4) The proposed sealing is narrowly tailored; 

and [¶] (5) No less restrictive means exist to achieve the 

overriding interest.” (Cal. Rules of Court, rule 2.550(d).)

“California courts have taken varying approaches to the 

standard of review” of an order granting or denying a motion to

seal court records, depending on whether the trial court sealed 

records, refused to seal records, or unsealed records. (Overstock, 

supra, 231 Cal.App.4th at 490.) When reviewing an order 

refusing to seal (or an order unsealing) records, the reviewing 

court evaluates whether the sealed records rules apply de novo 

and, if so, determines “whether substantial evidence supports the 

trial court’s express or implied findings that the requirements for 

sealing are not met.” (Id. at 492; see People v. Jackson (2005) 128 

Cal.App.4th 1009, 1020; In re Providian Credit Card Cases (2002) 

96 Cal.App.4th 292, 302-303.)

We thus look first to the applicability of the sealed records 

rules, which generally apply to “records sealed or proposed to be 

sealed by court order.” (Cal. Rules of Court, rule 2.550(a)(1).) 
14

Nicolino argues Rey’s declaration is not subject to the rules 

because “irrelevant discovery materials or materials as to which 

evidentiary objections are sustained[ ] are not ‘submitted as a 

basis for adjudication’ and thus are not within the ambit of the 

constitutional right of access and, concomitantly, not subject to 

the sealed records rules.” (Overstock, supra, 231 Cal.App.4th at 

492.) In so arguing, Nicolino ignores the fact that neither the 

information in Rey’s declaration nor the exhibits attached thereto 

were obtained through the discovery process. The exception, 

which by its terms is limited to “discovery materials,” does not 

apply. (See Cal. Rules of Court, rules 2.550(a)(2), (3).)

We next turn to whether substantial evidence supports the 

trial court’s denial of the motion, which was predicated on three 

independently sufficient reasons: (1) Nicolino’s request was 

overly broad and not narrowly tailored; (2) the declaration in 

support of the sealing motion did not provide a sufficient basis to 

justify sealing; and (3) it would be imprudent to seal the 

declaration given the pendency of other related (in the colloquial 

sense) actions between Nicolino, her production company, and 

Rey.

Substantial evidence supports the trial court’s 

determination that Nicolino’s sealing proposal was not narrowly 

tailored—indeed, quite the opposite: Nicolino proposed to redact 

the entire substance of Rey’s declaration. Even if Nicolino’s 

complaints about the contents of Rey’s declaration were justified, 

this level of redaction is plainly not narrowly tailored. Because 

rule 2.550 of the California Rules of Court requires a court to find 

facts to establish all five listed factors, including that the 

proposed sealing is narrowly tailored, the lack of narrow tailoring

suffices to affirm the trial court’s ruling and we need not discuss 
15

the substantial evidence supporting the trial court’s conclusion 

that the declaration submitted in support of the sealing motion 

was deficient.

Nicolino disagrees, primarily on the ground, which we have 

already rejected, that she was not required to narrowly tailor her 

request because the sealed records rules do not apply. She also 

contends her request was narrowly tailored because Rey “weaved 

her irrelevant vitriol through the pleading” such that redacting 

the entire declaration was necessary. Nicolino’s specific 

examples of the “irrelevant vitriol,” however, begin with a 

statement on page four of Rey’s declaration. At a bare minimum, 

the first page of Rey’s declaration appears both devoid of any socalled vitriol and relevant to the proceedings: the contents 

include Rey’s general description of her employment with

Nicolino. Nicolino also argues the trial court should have 

permitted her to resubmit a more narrowly tailored version of a 

request to seal. But that is too little too late. It was Nicolino’s

burden to present the court with a narrowly tailored request and 

she did not do so.

Nicolino also contends the trial court had the inherent 

power to strike a “document containing disrespectful, scandalous, 

or abusive language directed against the courts, officials, or 

litigants, or to take such other action as the circumstances may 

require” (Warner v. Warner (1955) 135 Cal.App.2d 302, 304), and 

the court abused its discretion by failing to recognize it had such 

power. Assuming without deciding that the language in Rey’s 

declaration rises to the level of “disrespectful, scandalous, or 

abusive,” we conclude the record does not affirmatively 

demonstrate the trial court was unaware of its discretion.
16

Nicolino points to the trial court’s statement that the court 

could not touch the declaration without a motion to seal as 

evidence it did not understand its discretion. In doing so, 

Nicolino ignores the rest of the trial court’s remarks on the issue. 

Earlier in the same discussion, the trial court expressed its belief 

that the issue of sealing was complicated and stated Nicolino 

filing an application to file under seal was “the easiest answer.” 

The court’s subsequent statement that it could not touch the 

declaration without an application to seal can be understood as

the court affirming its prior conclusion that an application was 

the “easiest” approach and informing Nicolino she should file an 

application. By determining this was the “easiest” approach, the 

court was implicitly recognizing there were other approaches

available, such as an exercise of its inherent power.

Even if we agreed, however, with Nicolino’s contention that 

the trial court was unaware of its discretion, the record amply 

demonstrates the court would not have exercised that discretion. 

At the hearing, Nicolino objected to questions that delved into the 

more sensitive topics the Rey declaration addressed. The court 

cautioned Rey to address the topics generally, rather than by 

delving into the details, but it also indicated it wanted to hear 

testimony on the issues. Crucially, the trial court expressly 

addressed the reason for this on the record, stating the court had 

read all of the filings and was exercising its discretion to limit 

testimony on certain topics because the court understood the 

subject matter of the issues and “the situation is difficult enough 

as is that I wish to just keep the record limited in that respect 

because I don’t need any further information on that subject 

matter.” The trial court stated the issues were relevant to its 

determination and limited testimony precisely because it had 
17

read the contents of the documents, including Rey’s declaration. 

There is no reasonable probability it would have stricken Rey’s 

declaration if it had known it had the discretion to do so.

B. The Trial Court’s Attorney Fees Award Is Not an 

Abuse of Discretion

“‘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”’—

meaning that it abused its discretion.” (PLCM Group, Inc. v. 

Drexler (2000) 22 Cal.4th 1084, 1095.) Nicolino mounts two 

challenges to the trial court’s attorney fees award. First, she 

argues the trial court’s fee award is infected by partiality, i.e., by 

the court’s asserted animus against her. Second, she argues that 

the trial court erred by granting Rey fees for certain tasks 

performed by her attorney. Neither argument is meritorious.

Nicolino’s first argument, based on a smattering of excerpts 

from the record, is that the trial court awarded Rey attorney fees 

because it was partial to Rey and/or prejudiced against Nicolino. 

Specifically, Nicolino complains that the trial judge characterized 

Rey as Nicolino’s “friend,” expressed an interest in Nicolino’s 

financial status and allowed Nicolino’s financial status to affect 

its decision, made assumptions about Rey’s status, and lost his 

temper at Nicolino “unprovoked.” These arguments do not 

establish the trial court abused its discretion in awarding Rey 

fees.

First, the record contains sufficient evidence from which 

the trial court could reasonably conclude Rey and Nicolino were 

indeed, at one point, friends. Rey so stated in her declaration, 
18

and Nicolino referred to Rey as her “friend” in a text message 

that was admitted as an exhibit. Rey also testified at the hearing 

that she and Nicolino had been close friends at one point.

Second, the trial court inquired into Nicolino’s financial 

status during the hearing on the restraining order—not in 

connection with the attorney fee motion—to understand the 

context of Nicolino’s relationship with Rey. Indeed, the court 

explained its rationale, stating it does not usually like to make 

such inquiries but the “context” of the parties’ relationships was 

an issue in the case (at least one of the incidents upon which 

Nicolino based her request for a restraining order occurred in her 

home). Moreover, the court did not indicate any of those factors 

influenced its decision to award Rey attorney fees. Though the 

court acknowledged Nicolino’s ability to pay the fee award in the 

minute order ruling on the motions, a party’s ability to pay fees is 

sometimes a factor a court is required to consider in awarding 

attorney fees. (E.g., Fam. Code, § 2030, subd. (a)(2).) Even if 

consideration of an ability to pay was improper in this case, we 

believe the record indicates it played at most a minor role in the 

fees determination such that there is no reasonable probability 

the fee award would have been different absent consideration of 

an ability to pay.

Third, Nicolino takes issue with certain statements the 

court made, contending they indicate the court incorrectly 

assumed Rey was an unsophisticated young woman who was a 

victim of Nicolino, and claims the court lost its temper at Nicolino 

during the motion hearing “unprovoked.” As to the former, 

Nicolino’s argument amounts to an attempt to litigate the 

accuracy of the court’s impressions. We will not entertain that

here, particularly where the court’s determination on the merits 
19

of the restraining order is not at issue. As to the latter, having 

read the transcript of the hearing on these motions, we disagree 

with Nicolino’s characterization of the court’s reaction as 

“unprovoked.” Nicolino, not her attorney, interrupted the trial 

court twice while the court was explaining its concerns about her 

request to read a statement at the motion hearing and its 

ultimate determination that it would not hear the statement. 

While the court would have done better to maintain a more 

patient approach even in the face of repeated interruptions, our 

review of the record satisfies us that the court’s comments reflect 

its view of the evidence, and do not indicate prejudice against 

Nicolino or partiality for Rey.

Turning to Nicolino’s second argument, she contends the 

trial court abused its discretion by awarding Rey fees for time 

spent on three categories of work: (1) 7.35 hours opposing 

Nicolino’s motion to seal; (2) 1.2 hours working with a specific

attorney; and (3) approximately 1.75 hours working on potential 

settlements. The problem with the latter two arguments is that 

Nicolino did not raise them in the trial court. “It is well 

established that appellate courts will ordinarily not consider 

errors that ‘could have been, but [were] not raised below.’ 

[Citations.] The rule applies to defenses as well as theories of 

liability, and to a ‘new theory for or against recovery’ of attorney 

fees.” (Findleton v. Coyote Valley Band of Pomo Indians (2018) 

27 Cal.App.5th 565, 569.) Because Nicolino did not assert those 

arguments below, we do not consider them on appeal.

Nicolino did, however, raise the issue of fees related to her 

motion to seal below. Rey sought, and the trial court awarded, 

attorney fees pursuant to the civil harassment restraining order 

statute, Code of Civil Procedure section 527.6, subdivision (s), 
20

which provides as follows: “The prevailing party in an action 

brought pursuant to this section may be awarded court costs and 

attorney’s fees, if any.” (Code Civ. Proc., § 527.6, subd. (s).) 

Nicolino argues fees for the time Rey’s attorney spent addressing 

Nicolino’s motion to seal are not authorized because Nicolino’s 

motion to seal was not, itself, brought under Code of Civil 

Procedure section 527.6, but rather under Rules of Court rules 

2.550 and 2.551.

Nicolino reads the statute too narrowly. By its plain 

language, subdivision (s) authorizes the award of attorney fees 

incurred “in an action” brought pursuant to Code of Civil 

Procedure section 527.6. Nicolino’s motion to seal in this case 

was, naturally, brought in the same action she initiated under

this statute. That the motion she filed was itself brought under a 

Rule of Court does not divorce the motion to seal from the 

“action” brought pursuant to Code of Civil Procedure section 

527.6. The trial court was within its discretion to award fees for 

the work.
21

DISPOSITION

The trial court’s orders are affirmed. Upon issuance of the 

remittitur, the materials filed in this court conditionally under 

seal are to be unsealed. Respondent shall recover her costs on 

appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, J.

We concur:

RUBIN, P. J.

KIM, J.