Filed 8/24/21 C.H. Reynolds Ele ct ric v. Powers CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

C.H. REYNOLDS ELECTRIC, INC.,

Plaintiff and Appellant ,

v.
GAVIN JOHN POWERS , Defendant and Respondent

. H0 46554 ( Santa Clara County Super. Ct. No. 17CH007422 )

Appellant C.H. Reynolds Electric, Inc. (CHRE) initiated contempt proceedings against its former employee , respondent Gavin John Powers , 1 after he violated a workplace violence restraining order. On appeal, CHRE challenges the trial court’s order denying CHRE recovery of security costs from Powers and asserts they are recoverable
under the governing statute , Code of Civil Proc edure section 1218 , subd ivision (a)

. 2 For the reasons we explain below, we affirm the order.

I. FACTS AND PROCEDURAL BACKGROUND In 2017, CHRE obtained a workplace violence restraining order against Powers , who had worked as a foreman for CHRE on a construction project

. After Powers later
violated the 2017 restraining order, CHRE initiated contempt proceedings. In September

1 Powers has not participated in this appeal. 2 Unspecified statutory references are to the Code of Civil Procedure.2

2017, t he trial court found Powers in contempt based on numerous violations of the restraining order and stayed impositi on of the sentence which, by agreement of the parties, was six days in the county jail and a $1
, 000 fine

. In July 2018, the trial court again held Powers in contempt, finding he had willfully sent texts and e

- mails to parties protected by the restraining order. T he trial

court lifted the stay on the 2017 sentence and imposed a modif ied jail term of five days (instead of six) and a $1
, 000 fine

. The trial court also imposed a 15

- day jail term and a fine of $4,000 for the new contempt violations . The trial court allow ed CHRE to seek attorney fees and costs under section 1218 , subdivision (a) (hereafter section 1218(a)) for both contempt proceedings

. CHRE filed a motion and supporting papers under section 1218(a) seeking , among other fees and costs, approximately $30,000 for private security guard expenses (hereafter security costs). CHRE argued that it had to retain armed security to protect its employees because local law enforcement and the trial court failed to act quickly and
Powers’s conduct was increasingly unstable

. In a declaration, CHRE’s attorney stated that “CHRE was forced to incur private security guard and emergency intercom expenses in the amount of $29,935. 00 because local law enforcement and the Court did not redress the contemptuous activity in a speedy manner and it had a duty to provide its employees with a safe and secure workplace.” That declaration also attached , among other documents, supporting invoices and a 2002 federal OSHA fact sheet regarding workplace
violence that detailed additional protections an employer could take to secure the workplace, including hiring security guards

. The motion contended , based on certain legislative history of section 1218, the L egislature intended for “an employer prosecuting a contempt action to be ‘made whole

. ’ ” On November 16, 2018, following a hearing, t he trial court issued the written
order that is the subject of this appeal

. T h e trial court ordered Po wers to pay CHRE approximately $4, 0 00 in various court costs and approximately $8 3 ,000 in attorney fees.3

However, the trial court rejected CHRE’s request for reimbursement of security costs

. T he trial court stated that, although the claimed costs were “reasonable” in light of Powers’s conduct, the costs were “not ‘connected’ sufficiently with the contempt proceeding to fall within section 1218(a).” Furthermore, the trial court found that the “snippet of some what

- ambiguous legislative history” suggesting that employers should
be made whole could not overcome the plain language of section 1218(a) requiring a connection to the contempt proceeding. The court therefore declined to order Powers to
reimburse CHRE f

or the security costs

. CHRE filed a notice of appeal of the November 16, 2018 order , asserting it was appealing from “[a]n order after judgment under Code of Civil Procedure, § 904.1(a)( 2 ).”
II. DISCUSSION
CHRE challenges the trial court ’s denial of i ts request for security costs , which it
asserts are recoverable under section 1218 (a)

. CHRE argues we should apply de novo review to the question whether , on these facts, its security costs were sufficiently connected to the contempt proceedings to be recoverable. CHRE maintains the security costs were logically related to the contempt proceedings as the company had to in cur them due to delays by law enforcement and courts in responding to Power s’s violations
of the re s training order.
A. Appealability In its statement of appealability (see Cal. Rules of Court, rule 8.204(a)(2)(B) ) , CHRE contends section 904.1, subdivision (a)(1) , authorizes its appeal from the partial
denial of its motion for attor ney fees and costs. CHRE acknowledges that a “ ‘judgment of contempt’ is nonappealable ” (see § 1222). However, it asserts that the November 16, 2018 order issued in the contempt proceeding s is appealable as a final judgment , relying primarily on Los Ange les Times v. Alameda Corridor Transp ortation Auth ority (2001) 88 Cal.App.4th 1381, 1388 ( L A Times ) . Alternatively, CHRE requests that we treat its appeal as a writ proceeding

.4

A reviewing court has jurisdiction over a direct appeal only when there is (1) an appealable order or (2) an appealable judgment. ( Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696 ( Griset ).) Because the existence of an appealable judgment or order “is a jurisdictional prerequisite to an appeal” ( Jennings v. Ma rralle (1994) 8 Cal.4th 121, 126), a reviewing court must resolve any doubts regarding finality of a judgment or appealability of an order before turning to the merits of the appeal. ( Ibid. )
Whether a trial court ’s order is appealable is determined by s tatute. ( Griset , supra , 25 Cal.4th at p. 696.) Section 904.1 provides the main statutory authorization for civil appeals. ( Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, 1377. ) It states in relevant part that an appeal may be taken from a final judgment (§ 904.1 subd. (a)(1) ). 3
Based on the circumstances here, we conclude that the order at issue in this case
fits under the rubric of an appealable final judgment. In LA Times , the appellate court concluded it had jurisdiction under section 904.1 , subdivision (a)(1) , over an order denying attorney fees incurred in a California Public Records Act lawsuit, even though the underlying judgment was not itself appealable. ( LA Times , supra , 88 Cal.App.4 th at
pp. 1384, 1388

– 1389.) The Court of Appeal in L A Times reasoned that the attorney fees order was appealable because
, “[n]othing remains for future consideration, and no other opportunity exists for appellate review” and it “is therefore ‘properly viewed as a final judgment and hence appealable as such’ under section 904.1, subdivision (a)(1).” ( Id. at
p. 1389 ; see also Estate of Miramontes

- Najer a (2004) 118 Cal.App.4th 750, 755.) We
reach the same conclusion here. With respect to the trial court’s order denying CHR E the security costs , n othing remains to be adjudicated, and there exists no other avenue for appellate r eview. While a

3 As C H RE points out in its briefing, C H RE ’s notice of appeal relied on another listed ground in section 904.1

— section 904.1, subd. (a)(2)

— that applies to a n order made after an appealable judgment. C H RE asserts that its reliance on that ground was in error because contempt judgments are nonappealable. We agree and therefore do not address this ground further.5

judgment or order of c ontempt is not directly appealable ( see § 1 222; Bermudez v. Municipal Court (1992) 1 Cal.4th 855, 861, fn. 5 ), we are not faced with an order of contempt, but rather an order setting costs and attorney fees. We furthe r note that the
reasons for prompt writ review (rather than a direct appeal) of a judgment or order of contempt are not at issue here. ( Cf. In re M.R. (2013) 220 Cal.App.4th 49, 65 [“A challenge to a judgment of contempt requires writ review because it is vital that an order of incarceration be reviewed promptly.”].) We are therefore satisfied that the order under
these circumstances is an appealable f inal judgment , and we have jurisdiction to review
it

. B. Analysis Turning to the merits of the appeal, w e do not agree with CHRE that the trial court
committed reversible error in declining to award the c laimed security costs under section 1218(a)

. That sta tute provides: “[A] person who is subject to a court order as a party to the action . . . who is adjudged guilty of contempt for violating that court order may be ordered to pay to the party initiating the contempt proceeding the reasonable attorney’s
fee s and costs incurred by this party in connection with the contempt proceeding.”
CHRE asserts we should review the trial court’s conclusion de novo. Although we have not located a published decision articulating the standard of review for a trial court ’s
order under section 1218 (a) , we reject CHRE ’s argument that its challenge presents a pure question of law. Instead, we conclude we should review the order for abuse of
discretion. Notably , the statute uses the word “may” to describe the trial court’s authority
to order costs and therefore invests discretion in the court

. ( See Chaaban v. Wet Seal,
Inc. (2012) 203 Cal.App.4th 49, 52 [holding, in context of order denying motion to tax

costs a nd allowing costs under section 1033.5 , “[t] o the extent the statute grants the court discretion in allowing or denying costs or in determining amounts, we reverse only if
there has been a ‘ “ clear abuse of discretion ” and a “ miscarriage of justice ” ’ ”].)6

We analogize our review of a costs order under section 1218 (a) to an award for attorney fees under that statute. “ ‘ “ ‘ “ An order granting or denying an award of attorney fees is generally reviewed under an abuse of discretion standard of review;
howe ver, the ‘ determination of whether the criteria for an award of attorney fees and costs have been met is a question of law. ’

. . . ” ’ ”

. . . An issue of law concerning entitlement to attorney fees is reviewed de novo. ’ ” ( Rickley v. Goodfriend (2012) 2 07 Cal.App.4th 1528, 1533.) With respect to what constitutes an abuse of discretion,

“ ‘[d]iscretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered. The burden is on the pa rty complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary powe r

. ’ ” ( Denham v. Superior Court (1970) 2 Cal.3d 557, 566 .) With these principles in mind and having carefully reviewed the record, w e conclude the trial court did not abuse its di s cretion. There is no indication that the trial

court misunderstood the relevant law or believed it generally lacked authority to grant security costs. We disagree with CHRE’s contention that the trial court “improperly interpreted the statutory phrase ‘in connection with contempt proceedings

. ’ ” U nder the permissive terms of section 1218(a), t he trial court was not required to order Powers to
pay any costs incurred by CHRE , regardless whether security costs are theoretically
recoverable under the statute . Rather, “ the Legislature intended to authorize a tr ial court
to, in its discretion, require a contemner to pay the complainant’s reasonable attorney fees and costs incurred in connection with the contempt proceeding. ” ( Goold v. Superior
Court (2006) 145 Cal.App.4th 1, 10 .)
CHRE argues it had to incur these security costs because local law enforcement failed to “properly” enforce the restraining order and Powers posed a “credible threat

. ”
B ut whether Powers should be ordered to pay them is a question the statute commits to7

the discretion of the trial court. Although another trial court may well have reached a different decision, w e see no abuse of discretion in the trial court ’s conclusion that the security costs were too attenuated from t he contempt proceeding s in this case to justify ordering Powers to pay for them. While we are sympathetic to the security concerns faced by CHRE, we cannot conclude the trial court erred

. We therefore affirm its order.
III. DISPOSITION The appeal from the November 16, 2018 order is affirmed

.______________________________________ D anner, J.

WE CONCUR:

____________________________________ Greenwood , P .J.

____________________________________ Grover , J.

H046554 C.H. Reynolds Electric, Inc. v. Powers