Adler v. Vaicius

In Adler v. Vaicius (1993) 21 Cal.App.4th 1770, the plaintiff in an action under section 527.6 appealed from an attorney fee award to the prevailing defendant, arguing that she (the plaintiff) had been deprived of due process. The plaintiff had obtained an ex parte temporary restraining order (TRO), but then filed a request for dismissal with prejudice after the TRO expired. The defendant, a police officer, then sought attorney fees. On appeal, the plaintiff claimed that the expiration of the TRO, by its own terms, deprived the trial court of jurisdiction to make the fee award. The court disagreed. (21 Cal.App.4th at pp. 1774-1776.) The court also rejected the plaintiff's contention that since she had obtained a TRO, she was the prevailing party. Instead, the court applied the normal rule that when a plaintiff dismisses an action with prejudice, the defendant is considered the prevailing party. (Id. at pp. 1776-1777.) The appellant argued that the court lost jurisdiction over the petition when the TRO expired after the court ordered a continuance of the hearing on the petition due to the lack of an available judge. ( Id. at pp. 1773-1774.) The Adler court held that the trial court did not lose jurisdiction over the petition by continuing the hearing beyond the 15-day time provision. (Id. at pp. 1775-1776.) The court referred to section 527, which allowed a continuance at the request of the defendant, and stated that the court itself could continue the matter: "when the necessary business of the court prevents it from hearing the matter within that time . . . ." (Ibid.) The Adler court concluded that the court in a 527.6 proceeding could also continue the matter without losing jurisdiction.