The Regents of the U. of Cal. v. He CA4/1

California Court of Appeal · D081233 · 2024-05-22 · Unpublished

Proceeding: appeal from an order
Trial court: Superior Court of San Diego County · No. 37-2022-00019284-CU-PT-CTL
Trial judge: Robert C. Longstreth
Outcome: affirmed — Affirmed.
Area: civil
Panel: Buchanan (author), Judith D. McConnell, O'Rourke

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T04:13Z · confidence high

The trial court granted the University's request for voluntary dismissal of the workplace violence restraining order petition with prejudice and denied Ling He's request for attorney's fees, finding her anti-SLAPP motion moot. The Court of Appeal affirmed, holding that He failed to demonstrate error or a legal basis for the fees and punitive damages she sought on appeal.

Ruling reviewed	Standard	The court	The model
Denial of attorney's fees and finding the anti-SLAPP motion moot “Ling He has failed to meet her burden of demonstrating any error as to the anti-SLAPP motion—or showing any other legal basis for recovery of attorney’s fees or punitive damages.”	de novo	correct	agree with court The appellate court correctly applied the presumption of correctness and the appellant's burden to demonstrate error. It accurately noted that the WVRO statute does not authorize fees for respondents and that He failed to argue that the trial court abused its discretion in denying the untimely anti-SLAPP motion.

Authorities

relied: Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124 — Attorney’s fees are not recoverable unless expressly authorized by statute or contract.
relied: Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412 — Issues not raised in the trial court cannot be raised for the first time on appeal.
relied: Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270 — An appealed order or judgment is presumed correct, and it is the appellant’s burden to demonstrate error with reasoned argument and citations to authority.

The appellate opinion: sound — The opinion is sound because it correctly identifies that the appellant failed to meet her burden of demonstrating error regarding the anti-SLAPP motion and that the requested remedies are not available under the cited statutes. It properly applies the presumption of correctness to the trial court's order.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:29Z · confidence low

The trial court granted the University's request to voluntarily dismiss its workplace violence restraining order petition against Ling He with prejudice, denied her request for attorney's fees, and found her anti-SLAPP motion moot. The Court of Appeal affirmed, holding that section 527.8 does not authorize fees or punitive damages for a prevailing respondent, that sanctions could not be requested for the first time on appeal, and that He failed to demonstrate any error regarding her untimely anti-SLAPP motion.

Ruling reviewed	Standard	The court	The model
Denial of Ling He's request for attorney's fees as the respondent to a Code of Civil Procedure section 527.8 workplace violence restraining order petition “Attorney’s fees are not recoverable unless expressly authorized by statute or contract.”	unclear	correct	agree with court The court did not expressly state a standard, but entitlement to fees is a legal question and the court correctly applied the American rule as stated in Reynolds Metals: section 527.8 contains no fee provision for a prevailing respondent, and He identified no contract. The only statutory fee route she had was the anti-SLAPP statute, addressed separately.
Finding that Ling He's anti-SLAPP motion was moot after the petition was dismissed with prejudice “Ling He has not argued on appeal that the trial court abused its discretion by declining to consider her untimely anti-SLAPP motion—nor has she argued that she was entitled to prevail on the merits of the motion.”	abuse of discretion	correct	agree with court The result is defensible because the motion was filed 109 days after the petition, well past the 60-day deadline in section 425.16(f), the trial court has discretion to refuse a late motion, and He presented no reasoned argument of error, so the presumption of correctness controls. However, the opinion recharacterizes the trial court's mootness finding as a discretionary refusal to consider an untimely motion, and does not address Liu v. Moore and its progeny holding that a voluntary dismissal while an anti-SLAPP motion is pending does not moot the fee issue; because the dismissal here was by court order after trial had commenced and the motion was then on file, that line of authority was at least arguably relevant. Given the untimeliness and forfeiture, I agree with the outcome.
Rejection of Ling He's request for punitive damages or monetary sanctions against the University “Ling He also did not make any motion for monetary sanctions in the trial court (Code Civ. Proc., § 128.7) and cannot make such a request for the first time on appeal.”	de novo	correct	agree with court No sanctions motion was made below, so the issue was forfeited under Sea & Sage Audubon; independently, Government Code section 818 bars punitive damages against a public entity such as the Regents, and section 128.7(f) limits punitive-type sanctions to a narrow circumstance not present here. The court's reasoning is correct on each ground.
Grant of the University's request for voluntary dismissal of the WVRO petition with prejudice “At an unreported hearing on September 13, 2022, the court granted the University’s request for voluntary dismissal of the action with prejudice.”	unclear	not reached	agree with court He did not challenge the dismissal itself, which was in her favor; the appeal sought only fees and damages. The appellate court properly did not review the dismissal order on its merits.

Authorities

relied: Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124 — Attorney's fees are not recoverable absent express authorization by statute or contract.
relied: Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412 — Issues not raised in the trial court cannot be raised for the first time on appeal.
relied: Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270 — An appealed order is presumed correct and the appellant bears the burden of demonstrating error with reasoned argument and citations to authority.
missed: Liu v. Moore (1999) 69 Cal.App.4th 745 — A plaintiff's voluntary dismissal while an anti-SLAPP motion is pending does not deprive the trial court of jurisdiction to rule on the defendant's entitlement to fees under section 425.16(c); the court should decide the merits of the motion for fee purposes rather than treat it as moot.

The appellate opinion: sound with gaps — The opinion correctly disposes of the fee and punitive damages claims under the American rule, Government Code section 818, and forfeiture principles, and properly relies on the appellant's failure to show error as to the untimely anti-SLAPP motion. It skips the Liu v. Moore line of authority on whether dismissal moots a pending anti-SLAPP fee claim and glosses the trial court's actual mootness ruling as a discretionary refusal of an untimely motion, though the untimeliness and forfeiture make the result defensible.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 5/22/24 The Regents of the U. of Cal. v. He CA4/1 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 ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE REGENTS OF THE D081233 UNIVERSITY OF CALIFORNIA,

Plaintiff and Respondent, (Super. Ct. No. 37-2022- 00019284-CU-PT-CTL) v.

LING HE,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Robert C. Longstreth, Judge. Affirmed. Ling He, in pro. per., for Defendant and Appellant. Lagasse Branch Bell Kinkead, Michael W. Healy, and Shelby K. Craven for Plaintiff and Respondent. MEMORANDUM OPINION Ling He appeals from an order dismissing with prejudice a petition for workplace violence restraining order (WVRO) brought against her by the Regents of the University of California (University) under Code of Civil Procedure section 527.8. Ling He was employed by the University until she was terminated in 2018. She filed a lawsuit against the University over her termination. In May 2022, the University filed a petition for WVRO against Ling He, seeking protection for two University employees in response to perceived threats made by Ling He and concerns about her mental health. The court granted a temporary restraining order naming the two employees as protected parties. Later, Ling He sent additional threatening messages to the University’s counsel, including threats to kill him. The trial court extended the temporary restraining order to include a stay-away order protecting the University’s counsel. After several continuances, the court began conducting an evidentiary hearing on the University’s petition on September 1, 2022. Ling He invoked her Fifth Amendment rights and refused to testify. After one of the University employees testified, the hearing was continued to September 13, 2022. On September 9, 2022, the University filed a request for voluntary dismissal of its petition with prejudice. Half an hour later, Ling He filed an anti-SLAPP motion to strike the WVRO petition. The University filed an opposition arguing that the anti-SLAPP motion was untimely. At an unreported hearing on September 13, 2022, the court granted the University’s request for voluntary dismissal of the action with prejudice. According to the minute order, the court also denied Ling He’s request for attorney’s fees and found her anti-SLAPP motion to be moot. Representing herself, Ling He has appealed from the order of September 13, 2022. As best we can tell from her opening brief, the relief she seeks on appeal is an award of attorney’s fees and punitive damages against the University for bringing the WVRO petition. However, the WVRO statute 2 does not authorize recovery of attorney’s fees or punitive damages by a prevailing respondent. (Code Civ. Proc., § 527.8.) Attorney’s fees are not recoverable unless expressly authorized by statute or contract. (Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 127.) Ling He also did not make any motion for monetary sanctions in the trial court (Code Civ. Proc., § 128.7) and cannot make such a request for the first time on appeal. (See Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 417 [issues not raised in trial court cannot be raised for first time on appeal].) Moreover, punitive damages may not be imposed against a public entity (Gov. Code, § 818) and may be recovered as sanctions only against a convicted felon who has brought a frivolous lawsuit against their crime victim (Code Civ. Proc., § 128.7, subd. (f)). Although attorney’s fees are recoverable under the anti-SLAPP statute (Code Civ. Proc., § 425.16, subd. (c)(1)), Ling He has not asserted or demonstrated any error in connection with her anti-SLAPP motion. As the University notes, her anti-SLAPP motion was not filed within the statutory 60-day deadline (id., subd. (f)) because it was filed 109 days after the University’s WVRO petition. Ling He has not argued on appeal that the trial court abused its discretion by declining to consider her untimely anti-SLAPP motion—nor has she argued that she was entitled to prevail on the merits of the motion. An appealed order or judgment is presumed correct, and it is the appellant’s burden to demonstrate error with reasoned argument and citations to authority. (Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277.) Ling He has failed to meet her burden of demonstrating any error as to the anti-SLAPP motion—or showing any other legal basis for recovery of attorney’s fees or punitive damages.

3 DISPOSITION The order of September 13, 2022 is affirmed. The parties shall bear their own costs on appeal.

BUCHANAN, J.

WE CONCUR:

McCONNELL, P. J.

O’ROURKE, J.

Cites, in this corpus

Sea & Sage Audubon Society, Inc. v. Planning Commission L.A. 31654 · 1983-08-29
Reynolds Metals Co. v. Alperson L.A. 31045 · 1979-08-31