Case: Hay v. Marinkovich - 4DCA holds that statute prohibiting unauthorized use of computers for improper purpose allows an award of attorney fees to prevailing defendants, limits availability of fees

Decided: 2/6/2025

Docket

Case Overview:

Procedural posture: Appeal from the San Diego Superior Court’s order granting defendant’s costs but denying defendant’s request for attorney fees

Plaintiff-respondent: Emoke Hay

Defendant-appellant: David Marinkovich

Fourth District Court of Appeal, Division One case no.: D08561

Appeal from: San Diego Superior Court (Caietti, J.)

Advocates: Kendra Hall and Sean Sullivan for Hay; Ron Stormoen and Amber Babin for Marinkovich

Question:

(1) Does Penal Code § 502, which prohibits the unauthorized use of any computer system for an improper purpose, allow an award of attorney fees to a prevailing defendant in a civil case?

(2) Under what circumstances can a prevailing defendant recover attorney fees under Penal Code § 502?

Answer:

(1) Yes, a prevailing defendant in a Penal Code § 502 civil case can recover attorney fees.

(2) A prevailing defendant can recover attorney fees only where the plaintiff’s claim was “objectively without foundation when brought, or the plaintiff continued to litigate after it clearly became so.” The superior court in this case acted “well within its discretion” in finding that plaintiff’s claim was not frivolous or abusive.

Outcome:

The Fourth District Court of Appeal, Division One affirmed the superior court’s order awarding costs to Marinkovich and denying Marinkovich’s request for fees.

Justice Buchanan authored the opinion, joined by Justices Irion and Rubin.

Links:

Westlaw: 2025 WL 414655