Filed 10/24/13 Cunningham v. Coombs CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


ARCHIBALD CUNNINGHAM,
         Plaintiff and Appellant,
                                                                     A134206, A134759
v.
MICHAEL COOMBS et al.                                                (San Francisco City & County
                                                                     Super. Ct. No. CGC-11-511994)
         Defendants and Respondents.


         Plaintiff Archibald Cunningham has filed two appeals, which we consolidated by
order filed on July 25, 2012. In the first, case No. A134206, he argues we must reverse
the court’s order dismissing his action against defendants John Scott McKay, Michael
Coombs, and Tamara Woods for plaintiff’s failure to furnish security as ordered by the
court pursuant to Code of Civil Procedure section 391.1 of the vexatious litigant statutes.1
Plaintiff primarily argues that represented parties are not subject to this “furnish security”
remedy in light of our Supreme Court’s analysis in Shalant v. Girardi (2011) 51 Cal.4th
1164 (Shalant).
         In the second appeal, case No. A134759, plaintiff argues we must reverse the trial
court’s order awarding defendants Coombs and Woods, as prevailing parties, $27,000 in
attorney fees as a part of their costs. He primarily contends there is no contractual or
other basis for such an award, given that the court dismissed the action pursuant to the
vexatious litigant statutes.
         1
        All statutory references in this opinion are to the Code of Civil Procedure unless
otherwise stated.


                                                             1
       We find no merit in plaintiff’s arguments and affirm the orders appealed from in
their entirety.
                                      BACKGROUND
                     Plaintiff’s Causes of Action Against Defendants
       In June 2011, plaintiff, through legal counsel, Patrick Missud, filed a complaint for
damages against defendants John Scott McKay, Michael Coombs, and Tamara Woods.
Plaintiff also sued Judge Charlotte Walter Woolard and Judge Loretta M. Giorgi, both of
the Superior Court for the City and County of San Francisco.2
       In one cause of action against all three defendants, plaintiff alleged defendant
McKay, as legal counsel for defendants Coombs and Woods and on their behalf, engaged
in various acts of fraud and intentional deceit in a prior action, in which defendants had
won an arbitration award against plaintiff in a residential property dispute that had been
confirmed by the superior court.3 These included three sets of purported intentional
misrepresentations: (1) to plaintiff, in April 2010, that defendants Coombs and Woods
were not interested in litigating so as to induce plaintiff not to take legal action against
them; (2) to the court, in September 2010, in moving to compel arbitration that a 2007
“TIC Agreement” (TICA) was the one and only agreement between plaintiff and
defendants Coombs and Woods, while concealing the superseding “CC&Rs and Bylaws”
(CC&Rs); and (3) to the court, in April 2011, in moving to confirm the arbitration award
and opposing plaintiff’s motion to vacate it, regarding why the TICA had not terminated
and plaintiff had not fulfilled his obligations under it.
       In another cause of action against defendant Coombs and Woods only, plaintiff
alleged they had breached the CC&Rs in various ways.
       Another cause of action “for declaratory relief” was brought against all
defendants, but it sought injunctive relief against the judicial defendants only. Plaintiff
sought general, special and punitive damages, as well as attorney fees and costs.

       2
         The subject of appellant’s dispute with these judicial defendants is not a part of
this appeal and, therefore, we do not discuss it further.
       3
         This prior action is the subject of another appeal by plaintiff, case No. A131914.


                                               2
              The Court’s Order Pursuant to the Vexatious Litigant Statutes
       Defendants moved pursuant to section 391.1 for an order that plaintiff furnish
security in the amount of $75,000, contending he was a vexatious litigant as defined in
section 391, and had no reasonable likelihood of prevailing in the action. Defendants
submitted evidence via declarations to prove these two criteria were met. Defendants
also moved pursuant to section 391.7, subdivision (a), for an order prohibiting plaintiff
from filing any new lawsuits in propria persona without first obtaining leave of the
presiding judge of the court where the litigation is proposed to be filed.
       Regarding their “furnish security” motion, defendants contended plaintiff met the
statutory definition of a “vexatious litigant” because he had commenced, prosecuted, or
maintained in propria persona at least five litigations in the preceding seven years (§ 391,
subd. (b)(1)) and had, while acting in propria persona in litigation, repeatedly filed
unmeritorious motions, pleadings or other papers, conducted unnecessary discovery, or
engaged in other tactics that were frivolous or solely intended to cause unnecessary
delays (§ 391, subd. (b)(3)).
       Defendants contended plaintiff had no reasonable probability of prevailing in his
claims against them. They asserted McKay had not made any misrepresentations, he had
only expressed to the court his legal opinion that the TICA was valid, and, in any event,
plaintiff could not prove justifiable reliance on anything McKay had said. Also,
plaintiff’s breach of the CC&Rs claim lacked factual or legal bases and was barred by the
doctrine of res judicata because it raised the same issues as plaintiff’s defenses in the
prior action. Defendants suggested plaintiff be ordered to furnish security in the amount
of $75,000.
       Plaintiff, in his written opposition, did not contest defendants’ showing that he was
a vexatious litigant without a reasonable probability of prevailing in the litigation. He
argued only that he was not subject to the security provisions of the vexatious litigant
statutes because he was represented by counsel, Missud, who had filed the action on
plaintiff’s behalf.



                                              3
       Defendants replied that the court should not consider plaintiff’s opposition
because it was late, and could order a represented party to furnish security pursuant to
section 391.1.
       At the hearing on defendants’ motion, plaintiff, through his counsel, Missud,
asserted various matters related to the substance of plaintiff’s complaint, such as that
plaintiff, rather than being a vexatious litigant, was “trying to redress the original wrong.
He was compelled into arbitration, and there was absolutely no justification to do so.”
Missud argued defendants’ motion was an effort to “chill [plaintiff’s] right to speech, and
to limit his right to redress his grievance, and to court access.” Plaintiff objected to
“every part of [the motion], on all grounds,” but specifically asserted only that plaintiff
could not furnish $75,000 of security; the vexatious litigant statute applied only to
litigants appearing in propria persona; and plaintiff, having been treated unjustly in the
original ruling that compelled arbitration, was entitled to address this original wrong.
       Missud also informed the court for the first time that plaintiff wanted to be called
as a witness. The court denied this request, but allowed Missud to make an offer of proof
for the record.
       Following the hearing, the court granted defendants’ motion. It ruled that
plaintiff’s opposition was untimely filed. It also rejected plaintiff’s argument that legal
representation shielded him from vexatious litigant orders. The court concluded his legal
representation “was only relevant insofar as it allows him to initiate litigation through his
counsel without obtaining leave from the presiding judge,” based largely on the statement
in Flores v. Georgeson (2011) 191 Cal.App.4th 881 (Flores) that “[r]etaining counsel
does not insulate a vexatious litigant from an order to post security, but being represented
by counsel does allow a vexatious litigant who is subject to a prefiling order to initiate
litigation without first obtaining leave from the presiding judge.” (Id. at p. 886.) The
court also concluded plaintiff “had not adequately rebutted the ample showing that he is a
vexatious litigant and has not presented any relevant evidence or authorities suggesting
that he has a reasonable likelihood of prevailing on the merits.” The court ordered
plaintiff to furnish security in the amount of $50,000 within 10 days of service of the


                                              4
order or face dismissal of the action pursuant to sections 391.3 and 391.4, and prohibited
plaintiff from filing any new lawsuits in propria persona without first obtaining leave of
the presiding judge.
                           The Court’s Dismissal of the Action
       Defendants subsequently moved for dismissal of the action on the ground that
plaintiff did not furnish security as ordered. Plaintiff, mistakenly asserting the court
ordered him to furnish security pursuant to section 391.7 rather than section 391.1,
objected that a prefiling order could not be imposed on him as a party represented by
counsel, Missud, and could not “dismiss the case for failing to comply with an invalid
prefiling order.” Also, he asserted, the court’s security requirement “effectively
precludes Missud from representing his client. This is tantamount to a de facto
debarment . . . .” The court’s imposition of a prefiling order, plaintiff argued, violated his
“right to have counsel, his right to petition grievances under the [First] Amendment, his
right to be heard under the [Fourteenth] Amendment, but it also acts as a de facto
[disbarment] of an attorney, which trial judges are without authority to impose.”4
       At the hearing on defendants’ motion, Missud argued mostly that plaintiff should
not be considered a vexatious litigant because he had been deemed a vexatious litigant in
family court, not civil court. He did not otherwise argue that plaintiff’s failure to comply
with the court’s order should be excused.
       The court granted defendants’ motion to dismiss, ordered the action dismissed,
and awarded defendants their costs of suit. Plaintiff filed a timely notice of appeal, which
appeal is case No. A134206.
           The Court’s Award of Attorney Fees to Defendants Coombs and Woods
       Defendants Coombs and Woods subsequently moved to fix the amount of attorney
fees as an item of costs, on the ground that they were entitled to recover these fees as part
of their costs of suit. Plaintiff opposed the motion. After hearing, the court granted

       4
         Plaintiff also apparently moved to strike costs and sought sanctions against
defendants for filing a frivolous attorney fee motion, but this motion is not contained in
the record.


                                              5
defendant’s motion, ordering that Coombs and Woods were entitled to recover $27,000
from plaintiff for prejudgment attorney fees. Plaintiff filed a timely notice of appeal from
this order, which appeal is case No. A134759.
                  Defendants’ “Furnish Security” Motions in this Court
       Early in both of these appeals, defendants moved in this court for orders requiring
appellant to furnish security as a vexatious litigant pursuant to Code of Civil Procedure
section 391.1 After consolidating the appeals and conducting a hearing, we denied these
motions by order filed on October 16, 2012, concluding that defendants, the moving
parties, had not met their burden of establishing that there is not a reasonable probability
that plaintiff would prevail in the subject appeal. (§ 391.1.)
       Missud filed the opening briefs for plaintiff in case Nos. A134206 and A134759.
On September 19, 2012, plaintiff filed substitutions of counsel in both cases, substituting
himself for Missud, and appeared in propria persona at the hearing on defendants’
“furnish security” motions. Plaintiff filed his consolidated reply brief in propria persona
and appeared in propria persona at argument.
                                       DISCUSSION
                                    I. Case No. A134206
A. A Represented Party Is Subject to the “Furnish Security” Provisions of the
   Vexatious Litigant Statutes
       In case No. A134206, plaintiff primarily argues the court erred in ordering him to
furnish security pursuant to sections 391.1 to 391.6 because, as a represented party, he
was not subject to these provisions. We reject the argument.
       Defendants moved below for an order that plaintiff furnish security pursuant to
section 391.1, which states: “In any litigation pending in any court of this state, at any
time until final judgment is entered, a defendant may move the court, upon notice and
hearing, for an order requiring the plaintiff to furnish security. The motion must be based
upon the ground, and supported by a showing, that the plaintiff is a vexatious litigant and
that there is not a reasonable probability that he will prevail in the litigation against the




                                               6
moving defendant.” (§ 391.1.) The terms “litigation,” “vexatious litigant,” “security,”
“plaintiff,” and “defendant” are each defined in section 391.5
       “ ‘The burden of establishing the [section 391.1] statutory condition is on the party
moving for security.’ ” (Muller v. Tanner (1969) 2 Cal.App.3d 445, 464 (Muller II).)

       5
          Section 391 states that “as used in this title, the following terms have the
following meanings:
        “(a) ‘Litigation’ means any civil action or proceeding, commenced, maintained or
pending in any state or federal court.
        “(b) ‘Vexatious litigant’ means a person who does any of the following:
        “(1) In the immediately preceding seven-year period has commenced, prosecuted,
or maintained in propria persona at least five litigations other than in a small claims court
that have been (i) finally determined adversely to the person or (ii) unjustifiably
permitted to remain pending at least two years without having been brought to trial or
hearing.
        “(2) After a litigation has been finally determined against the person, repeatedly
relitigates or attempts to relitigate, in propria persona, either (i) the validity of the
determination against the same defendant or defendants as to whom the litigation was
finally determined or (ii) the cause of action, claim, controversy, or any of the issues of
fact or law, determined or concluded by the final determination against the same
defendant or defendants as to whom the litigation was finally determined.
        “(3) In any litigation while acting in propria persona, repeatedly files
unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or
engages in other tactics that are frivolous or solely intended to cause unnecessary delay.
        “(4) Has previously been declared to be a vexatious litigant by any state or federal
court of record in any action or proceeding based upon the same or substantially similar
facts, transaction, or occurrence.
        “(c) ‘Security’ means an undertaking to assure payment, to the party for whose
benefit the undertaking is required to be furnished, of the party’s reasonable expenses,
including attorney’s fees and not limited to taxable costs, incurred in or in connection
with a litigation instituted, caused to be instituted, or maintained or caused to be
maintained by a vexatious litigant.
        “(d) ‘Plaintiff’ means the person who commences, institutes or maintains a
litigation or causes it to be commenced, instituted or maintained, including an attorney at
law acting in propria persona.
        “(e) ‘Defendant’ means a person (including corporation, association, partnership
and firm or governmental entity) against whom a litigation is brought or maintained or
sought to be brought or maintained.


                                             7
The trial court exercises its discretion in determining whether a person is a vexatious
litigant. In order to determine whether a plaintiff has a “reasonable probability” of
success, a court “performs an evaluative function in the section 391.1 hearing,” which
includes weighing the evidence. (Moran v. Murtaugh Miller Meyer & Nelson, LLP
(2007) 40 Cal.4th 780, 786 (Moran).) “[T]he statute does not require formal findings.”
(Devereaux v. Latham & Watkins (1995) 32 Cal.App.4th 1571, 1582, disapproved of on
another ground in Moran, at p. 785, fn. 7.)
       We uphold the trial court’s ruling if it is supported by substantial evidence. On
appeal, we presume the order is correct and infer findings necessary to support the
judgment. We review questions of statutory interpretation de novo. (Fink v. Shemtov
(2010) 180 Cal.App.4th 1160, 1169.)
       Plaintiff’s “represented party” argument relies largely on our Supreme Court’s
ruling in Shalant, supra, 51 Cal.4th 1164 that a represented party is not subject to the
prefiling provisions of section 391.7. Shalant does not avail plaintiff here. Shalant had
previously been found to be a vexatious litigant subject to a prefiling order under section
391.7, which “ ‘prohibits a vexatious litigant from filing any new litigation in propria
persona without first obtaining permission from the presiding judge.’ ” (Shalant, at pp.
1168, 1170; § 391.7, subd. (a).) Shalant filed a new action through legal counsel, but,
while it was pending, lost this representation and proceeded in propria persona without
obtaining permission from the presiding judge. The court subsequently granted the
defendants’ motions to dismiss Shalant’s complaint for failure to comply with section
391.7. The appellate court reversed. The Supreme Court granted the defendants’ petition
for review and ultimately agreed with the Court of Appeal, but not on any basis offering
solace to plaintiff. (Shalant, at p. 1169.)
       The Shalant court observed that the vexatious litigant statutes, sections 391 to
391.7, are “designed to curb abuse of the court system by those persistent and obsessive
litigants who, repeatedly litigating the same issues through groundless actions, waste the
time and resources of the court system and other litigants.” (Shalant, supra, 51 Cal.4th at
p. 1169.) It identified two different sets of remedies in the statutes. Sections 391 to


                                              8
391.6, the court observed, were enacted in 1963. They provide that in any pending
litigation a defendant can move for an order requiring the plaintiff to furnish security on
the grounds the plaintiff is a vexatious litigant with no reasonable probability of
prevailing against the moving defendant. If, after hearing, the court finds for the
defendant, it is required to order the plaintiff to furnish security as determined by the
court and, if plaintiff does not do so, dismiss the action. (Shalant, at p. 1170; §§ 391.1,
391.3-391.6.)
       The second remedy is contained in section 391.7, added by the Legislature in 1990
“ ‘to provide the courts with an additional means to counter misuse of the system by
vexatious litigants.’ ” (Shalant, supra, 51 Cal.4th at p. 1171.) It operates “ ‘ “beyond the
pending case,” ’ ” authorizing a court to enter a prefiling order. (Ibid.) It “did not
displace the remedy provided in sections 391.1 to 391.6 for defendants in pending actions
. . . . [Citation.] Rather, it added a powerful new tool designed ‘to preclude the initiation
of meritless lawsuits and their attendant expenditures of time and costs.’ ” (Ibid.)
       The Shalant court considered these two different remedies as “distinct and
complementary.” (Shalant, supra, 51 Cal.4th at p. 1171.) “In pending litigation, a
defendant may have the plaintiff declared a vexatious litigant and, if the plaintiff has no
reasonable probability of prevailing, ordered to furnish security. If the plaintiff fails to
furnish the security, the action will be dismissed. (§§ 391.1–391.6.) In addition, a
potential defendant may prevent the vexatious litigant plaintiff from filing any new
litigation in propria persona by obtaining a prefiling order and, if any new litigation is
inadvertently permitted to be filed in propria persona without the presiding judge’s
permission, may then obtain its dismissal. (§ 391.7.)” (Ibid.)
       The Shalant court concluded the defendants in that case “pursued the wrong
statutory remedy for the situation in which they found themselves.” (Shalant, supra, 51
Cal.4th at p. 1171.) Shalant had not violated any prefiling order because he filed the
action through counsel, and the trial court erred in granting defendants’ motions to
dismiss. (Ibid.) “Defendants could have proceeded under section 391.1 for an order
requiring Shalant to post adequate security before continuing to prosecute his action


                                               9
against them, making it subject to dismissal under section 391.4 if he failed to do so. On
remand, they may still pursue this remedy. They could not, however, properly seek
dismissal under section 391.7, as it governs only the filing of new litigation, and the
present action, filed as it was through counsel, did not violate the section 391.7 prefiling
order against Shalant.” (Id. at p. 1172.)
       The Shalant court specifically disapproved of Forrest v. Department of
Corporations (2007) 150 Cal.App.4th 183, to the extent it held section 391.7 applies to
acts other than the filing of new litigation in propria persona, doing so based on a “plain
language reading of section 391.7.” (Shalant, supra, 51 Cal.4th at pp. 1172-1173, fns. 3,
4.) The court emphasized that, “[i]f . . . the plaintiff is able to file the action through
counsel, sections 391.1 to 391.6 continue to provide a remedy against the plaintiff’s
unjustifiable behavior in the pending case.” (Id. at p. 1173.)
       The Shalant court also was not persuaded by the defendants’ argument that section
391.7, by its plain language, would allow a vexatious litigant to easily evade the statute
by finding a lawyer willing to file the complaint and then substitute out of the case. The
court could not assume, “contrary to the evident premise of section 391.7, that attorneys
generally will fail to act as gatekeepers against frivolous litigation” because they are
governed by prescribed rules of ethics and professional conduct, subject to disbarment
and other disciplinary actions not applicable to litigants in propria persona, rely on their
reputation in the community to sustain their careers, and are subject to the threat of
malicious prosecution liability for bringing an unmeritorious action. (Shalant, supra, 51
Cal.4th at p. 1176.)
       The Shalant court emphasized its holding was based on its obligation to follow the
unambiguous language of section 391.7. “Even if a broader rule, barring vexatious
litigants from filing or maintaining new litigation in propria persona, would serve the
statute’s purposes better by ending more frivolous litigation more quickly, we have no
warrant to ignore section 391.7’s unambiguous language in favor of such a rule. As the
appellate court below remarked: ‘We sympathize with the plight of already
overburdened trial courts that are forced to contend with the abusive conduct of vexatious


                                               10
litigants. But in their efforts to deal with the problem of vexatious litigants, courts must
observe the limits set by the applicable statutory scheme. If those limits are too
confining, then it is the function of the Legislature, not the courts, to expand them.’ As
already noted, defendants here may avail themselves of the remedy under sections 391.1
to 391.6, applicable to pending actions, by seeking an order that Shalant post security to
continue his prosecution of this action.” (Shalant, supra, 51 Cal.4th at p. 1176.)
       Contrary to plaintiff’s assertion, Shalant supports defendants’ right to seek a
“furnish security” order, whether or not plaintiff is represented. The Shalant court
focused on the contours of the prefiling order remedy, which application is expressly
limited to parties appearing in propria persona (§ 391.7, subd. (a)), but repeatedly
indicate the “furnish security” remedy was available to defendants during the pendency
of an action. The court’s indication that defendants could pursue the “furnish security”
remedy on remand does not decide the question before us, however, because the court
could have presumed Shalant would continue to appear in propria persona. Nonetheless,
a close reading of the opinion indicates the court considered the furnish security remedy
available whether or not a plaintiff was represented. Specifically, as we have indicated,
the court stated, “If, as here, the plaintiff is able to file the action through counsel,
sections 391.1 to 391.6 continue to provide a remedy against the plaintiff’s unjustifiable
behavior in the pending case.” (Shalant, supra, 51 Cal.4th at p. 1173, italics added.)
This undermines plaintiff’s interpretation of Shalant as favoring his view that represented
parties are not subject to the “furnish security” remedy.
       Plaintiff’s argument is further undermined by the three appellate courts that have
addressed the issue, all of which concluded that represented vexatious litigants are
subject to the “furnish security” remedy. In Muller v. Tanner (1969) 2 Cal.App.3d 438
(Muller I), the trial court ordered a plaintiff, Muller, appearing in propria persona, to
furnish security. (Id. at p. 441.) Rather than do so, Muller filed a second action signed
by an attorney; the trial court sustained a demurrer and dismissed the action as a sham,
fictitious, and without merit under its inherent powers. (Id. at pp. 440-442.) Our
colleagues in Division One affirmed, holding that Muller’s use of an attorney to file the


                                               11
second action “avail[ed] him naught” because “[t]he provisions of the vexatious litigant
statute, which the court acted to protect in this action, do not preclude a stay or dismissal
because an attorney is used in the action in which the motion is made. [Citations.]
Therefore, the use of an attorney in this case should not deprive the court of the power to
protect itself from abuse of the judicial process.” (Id. at p. 444, italics added.)
       The issue was even more extensively addressed in Camerado Ins. Agency, Inc. v.
Superior Court (1993) 12 Cal.App.4th 838 (Camerado). The defendant brought a
“furnish security” motion pursuant to section 391.1 against a represented plaintiff.
(Camerado, at p. 840.) The Camerado court reviewed the trial court’s denial of the
motion because the vexatious litigant statute “implicitly applies only to litigants acting in
propria persona in the civil action in which the vexatious litigant motion is brought.”
(Ibid.) After a thorough review, the Camerado court concluded this was “inconsistent
with the plain language of the statute, its legislative history, policy, case law and
commentary.” (Ibid.)
       Consistent with the textual analysis employed by the Shalant court, the Camerado
court first looked to “ ‘ “the usual, ordinary import of the language” ’ ” of sections 391 to
391.6, because “ ‘ “[i]f the words of the statute are clear, the court should not add to or
alter them to accomplish a purpose that does not appear on the face of the statute or from
its legislative history.” ’ ” (Camerado, supra, 12 Cal.App.4th at p. 841.) After reviewing
section 391.1 and the definitions for “plaintiff” and “vexatious litigant” contained in
section 391 (Camerado, at p. 841), the court concluded: “The language of this statute
leaves little room for interpretation. The defendant who moves for security must prove
the plaintiff is a vexatious litigant. A plaintiff is a person who commences, institutes or
maintains a litigation. The Legislature defined a plaintiff as a person, not as a person
acting in propria persona. A vexatious litigant is a person who engages in, or has
engaged in, any of the four types of conduct specified in section 391, subdivision (b). Of
the four defining acts that transform a plaintiff into a vexatious litigant, each refers to acts
committed while the person was in propria persona. . . . A plain reading of the statute
indicates the Legislature intended it to apply, at least as to the first and fourth described


                                              12
acts (§ 391, subd. (b)(1) and (b)(4)), to persons currently represented by counsel whose
conduct was vexatious when they represented themselves . . . .”6 (Id. at p. 842, italics
added, fn. omitted.)
        The Camerado court found support for its conclusion beyond the plain language of
the vexatious litigant statutes. It was consistent with the legislative purpose and history
of the vexatious litigant statutes. (Camerado, supra, 12 Cal.App.4th at p. 842.) Indeed,
the Muller court reached the same conclusion, and the Legislature was presumably aware
of Muller when it reenacted section 391, subdivision (b)(1) without substantive changes
as part of the 1990 amendments to the vexatious litigant statutes. (Camerado, at p. 843.)
In addition, the 1990 amendments changed the definition of “plaintiff” to include “an
attorney at law acting in propria persona.” (§ 391, subd. (d).) The court thought this was
done “to make plain that section 391 does not apply to opposing counsel, who is also a
person who ‘commences, institutes or maintains a litigation or causes it to be
commenced, instituted or maintained,’ and thus otherwise would fall within the definition
of ‘plaintiff.’ ” (Camerado, at p. 844.) Last, the Legislature’s addition of the prefiling
order remedy for plaintiffs appearing in propria persona was not inconsistent with the
broad reach of the vexatious litigant statutes. (Ibid.)
        Finally, and as the trial court indicated in its order granting defendants’ motion
below, Flores, supra, 191 Cal.App.4th 881 provides support for defendants’ view.
Flores dealt primarily with the contours of the “prefiling order” remedy outlined in
section 391.7, concluding it did not apply to represented parties. However, in comparing
the “prefiling order” remedy with the “furnish security” remedy, the Flores court
indicated the latter applied to represented parties, based on Camerado. (Flores, at p.
886.)
        We agree with the analyses and conclusions in these cases, particularly the
thorough analysis of the Camerado court. Most importantly, the plain language of
section 391.1, which governs the court’s application of the “furnish security” remedy, as
        6
         Defendants contended below that plaintiff qualified as a vexatious litigant
pursuant to section 391, subdivision (b)(1), among other things.


                                              13
well as the definitions contained in section 391 for terms used in section 391.1, i.e.,
“plaintiff” and “vexatious litigant,” do not limit the application of this remedy to
plaintiffs appearing in propria persona. It applies to represented parties as well.
       Plaintiff emphasizes that the Shalant court’s analysis was based on the “plain
language” of section 391.7, and cautioned courts to “observe the limits set by the
applicable statutory scheme.” (Shalant, supra, 51 Cal.4th at pp. 1173, fn. 4, 1176.)
However, plaintiff does not offer a plain language reading of section 391.1 that shows
represented parties cannot be required to furnish security, nor does he distinguish
Camerado’s textual analysis effectively. Plaintiff’s “plain language” argument is
unpersuasive.
       Plaintiff also emphasizes the Shalant court’s rejection of the argument that section
391.7 should apply to plaintiffs who lose representation during the pendency of a case
because otherwise unscrupulous parties could evade the statute’s purpose by retaining
attorneys merely to file the action. As plaintiff points out, the Shalant court considered
this unlikely because of the “evident premise” of the statute that attorneys “act as
gatekeepers against frivolous litigation.” (Shalant, supra, 51 Cal.4th at p. 1176.)
According to plaintiff, “[t]o allow the lawyer to file without ‘permission’ under [section]
391.7 on behalf of his vexatious client because he/she is presumed to be an ethical
‘gatekeeper’ but then subject him/her to a ‘vexatious litigant’ hearing under [section]
391.1 or the requirement for security would result in pure contradiction,” since the
attorney could file the suit but nonetheless face the risk of a dismissal at any time during
the pendency of the action.
       Along these same lines, plaintiff argues, subjecting represented parties to the
“furnish security” remedy would “invite unethical gamesmanship” by defendants’
attorneys, who could “try to dreg [sic] up grounds for having the ‘plaintiff’ once again
declared ‘vexatious’ ” at the beginning of an action, thereby adding “a new layer of
litigation onto the underlying suit” filed by the plaintiff. Plaintiff claims this would at
best turn the vexatious litigant statues “into some legal strategy that an unethical
‘defendant’s lawyer would use as a defense to a weak case.’ ”


                                              14
       Plaintiff’s arguments are unpersuasive for three reasons. First, the Shalant court’s
“gatekeeper” discussion was limited to section 391.7, and presented both before and after
the court emphasized its construction was based on the plain language of the statute.
Camerado, of course, does the same textual analysis. As the Shalant court pointed out, if
the limits of the statute are too confining, “ ‘it is the function of the Legislature, not the
courts, to expand them.’ ” (Shalant, supra, 51 Cal.4th at p. 1176.) We have no authority
to interpret the vexatious litigant statutes based on the policy considerations urged by
plaintiff in the face of their unambiguous language.
       Second, there is no contradiction in holding that represented parties are subject to
the “furnish security” remedy, but not the “prefiling order” remedy. As the Shalant court
indicated, the remedies are “distinct and complementary.” (Shalant, supra, 51 Cal.4th at
p. 1171.) Plaintiff ignores that, unlike the “prefiling order” remedy, the “furnish
security” remedy does not result in dismissal of the action; rather, after hearing, if a
represented party is found to be a vexatious litigant, that party can only be ordered to
furnish an appropriate amount of security—and only if the moving party establishes the
plaintiff does not have a reasonable probability of prevailing in the litigation. (§§ 391.1-
391.3.) Dismissal occurs only if this security is not furnished. (§ 391.4.) Thus, this
remedy is more limited than the “prefiling order” remedy, and can only be applied after a
hearing is held and factual determinations are made. Indeed, these higher hurdles for
defendants seeking a “furnish security” order may be explained by the fact that plaintiffs
subject to the “furnish security” remedy include those represented by counsel.
       Third, we see little chance that a defendant’s attorney would use the “furnish
security” remedy improperly when he or she has a weak case. This makes little sense
because the attorney is required to show the plaintiff’s case is weak in order to obtain the
remedy.
       Next, plaintiff argues that holding a represented party is subject to the “furnish
security” remedy would “render the plain language of the second sentence of [section]
391.7[, subdivision] (b) ambiguous.” It provides, “The presiding justice or presiding
judge may condition the filing of the litigation upon the furnishing of security for the


                                               15
benefit of the defendants as provided in Section 391.3.” (§ 391.7, subd. (b).) According
to plaintiff, “[r]eading the [vexatious litigant statutes] as a ‘collective whole,’ together
with [section] 391.3 and with Shalant in mind, this second sentence would only make
sense if the ‘filing’ were ‘in propria persona,’ not by a represented vexatious [litigant].”
While we agree the filing is in propria persona—that is, after all, expressly indicated in
section 391.7—we fail to see why this should matter in our analysis of the “furnish
security” remedy provided for in sections 391.1 to 391.6.
       Plaintiff also argues we should not rely on Muller I, supra, 2 Cal.App.3d 438
because it was one of two exceptional cases7 in which courts determined counsel were
acting as mere puppets for their vexatious clients, and also broadly interpreted the
vexatious litigant statutes before the Supreme Court’s caution against doing so in
Shalant. While the discussion in Muller I implies Muller’s attorney was only signing the
complaint, the court’s discussion of the vexatious litigant statutes does not hinge on this
implication, but instead appears to be a reading of the plain language of the statute.
Again, plaintiff’s argument is unpersuasive.
       Finally, plaintiff argues that applying the vexatious litigant statutes to a
represented plaintiff violates the fundamental constitutional rights of both him and his
attorney under the First and Fourteenth Amendments of the federal Constitution. These
arguments fail for myriad reasons.
       Plaintiff’s constitutional arguments are particularly unpersuasive because he does
not even cite, much less discuss, legal authority that relates to his particular claims. He
does not cite any case from the courts of our state. Of the two cases he does cite, he fails
to discuss the relevance of one, Boddie v. Connecticut (1971) 401 U.S. 371, which does


       7
          The second case, In re Shieh (1993) 17 Cal.App.4th 1154, is distinguishable
from the present case. As plaintiff points out, it involved a court’s determination that
plaintiff, although represented, could nonetheless be subject to a prefiling order pursuant
to section 391.7 because the attorneys who ostensibly represented him served as mere
puppets. (In re Shieh, at pp. 1167-1168.) Defendants made no such contention about
plaintiff’s counsel Missud. Although the trial court cited In re Shieh, it relied more on
Flores, supra, 191 Cal.App.4th 881 for its ruling.


                                              16
not even discuss vexatious litigants. And he neglects to consider the irrelevant
circumstances involved in the other, in which a federal court imposed limitations directly
on a representing attorney, which the Ninth Circuit, without engaging in any
constitutional analysis, held was improper because the attorney was not a litigant.
(Weissman v. Quail Lodge, Inc. (9th Cir. 1999) 179 F.3d 1194, 1197.)
       As to plaintiff’s claims about his own rights, as defendants point out the vexatious
litigant statutes have withstood various constitutional challenges. (See Muller II, supra, 2
Cal.App.3d at pp. 449-454; Taliaferro v. Hoogs (1965) 236 Cal.App.2d 521; see also
Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 222 [“[v]exatious litigant statutes are
constitutional and do not deprive a litigant of due process of law”]). These rejected
challenges include that the statutes purportedly impose unreasonable terms upon which
the state will permit litigation in its courts. (Taliaferro, at p. 528.) Plaintiff’s contention
that his right of access is infringed upon by the statutes is unpersuasive in light of this
authority.
       As to the rights of his legal counsel, Missud, plaintiff argues the trial court’s
construction of the vexatious litigant statutes denied Missud the fundamental right to
practice law and acted as de facto discipline of him. Putting aside questions we have
about plaintiff’s standing to make such an argument, we disagree with the factual
premise: the statute in question, section 391.1, does not authorize, nor did the trial court
issue, any order relating to Missud, let alone discipline him. The court’s order did not
impede Missud’s ability to practice law, but only required that one of his clients—found
to be a vexatious litigant without a reasonable probability of prevailing in the litigation—
to furnish security in order for the case to proceed. Plaintiff does not explain how this
order violated any of Missud’s constitutional rights.
       Plaintiff also argues certain matters based on the depublished appellate court
opinion, Shalant v. Girardi (2011) 183 Cal.App.4th 554.
We disregard these arguments because the opinion was depublished when the Supreme
Court granted review. The use of a depublished case is absolutely prohibited by the
California Rules of Court, which authorizes reference to unpublished opinions only in a


                                              17
narrow set of circumstances, none of which applies here. (People v. Williams (2009) 176
Cal.App.4th 1521, 1529; Cal. Rules of Court, rule 8.1115.)
       In short, we affirm the trial court’s ruling that plaintiff, even though represented
by counsel, was subject to the “furnish security” remedy in the vexatious litigant statutes,
sections 391.1 to 391.6.
B. Plaintiff’s Other Claims Lack Merit
       Plaintiff argues the procedures employed, and findings made, by the trial court in
determining defendants’ “furnish security” motion were improper, an argument that
asserts several claims of error: (1) his rights to due process were violated by his “retrial”
as a vexatious litigant and a lack of notice that the court would subject him, as a
represented party, to the “furnish security” remedy; (2) the court considered “unsworn
statements” by McKay, without allowing cross-examination, at the hearing; (3) the court
improperly denied plaintiff’s request to testify at the hearing; (4) the court improperly
determined plaintiff was not likely to prevail based solely on affidavits in violation of the
Evidence Code and his due process rights, and on mischaracterizations of the prior action
by McKay; and (5) a number of previous litigations cited by defendants did not support
the court’s finding that he was a vexatious litigant.
       Defendants argue plaintiff has waived virtually all of these arguments by not
raising them first below and/or making conclusory arguments unsupported by law or
citations to the record and that, in any event, they have no merit. We agree with
defendants.
       1. General Rules of Appellate Review
       As pointed out by defendants, there are black-letter rules of appellate review
relevant to our consideration of plaintiff’s claims here. “ ‘A judgment or order of the
lower court is presumed correct. All intendments and presumptions are indulged to
support it on matters as to which the record is silent, and error must be affirmatively
shown. This is not only a general principle of appellate practice but an ingredient of the
constitutional doctrine of reversible error.’ ” (Denham v. Superior Court (1970) 2 Cal.3d
557, 564 (Denham).)


                                             18
       “It is axiomatic that arguments not asserted below are waived and will not be
considered for the first time on appeal.” (Ochoa v. Pacific Gas & Electric Co. (1998) 61
Cal.App.4th 1480, 1488, fn. 3 [regarding matters not considered or ruled on by the trial
court] (Ochoa).) Furthermore, as we stated recently, “ ‘ “[t]he rule is well settled that the
theory upon which a case is tried must be adhered to on appeal. A party is not permitted
to change his position and adopt a new and different theory on appeal.” ’ ” (Benjamin,
Weill & Mazer v. Kors (2011) 195 Cal.App.4th 40, 53 (Benjamin, Weill & Mazer),
quoting Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334, 1350, fn. 12.)
Although we have the discretion to consider a purely legal question that rests on an
uncontroverted record that could not have been altered by the presentation of additional
evidence (In re Marriage of Broderick (1989) 209 Cal.App.3d 489, 501), we decline to
exercise this discretion here because “ ‘ “to do so would not only be unfair to the trial
court, but manifestly unjust to the opposing litigant.” ’ ” (Benjamin, Weill & Mazer, at
pp. 53-54.)
       As for the briefs submitted, we disregard factual assertions and legal arguments
for which proper support is not provided. “A reviewing court must accept and is bound
by the record before it [citations], cannot properly consider matters not in the record
[citations], and will disregard statements of alleged facts in the briefs on appeal which are
not contained in the record.” (Weller v. Chavarria (1965) 233 Cal.App.2d 234, 246
(Weller).) “To demonstrate error, appellant must present meaningful legal analysis
supported by citations to authority and citations to facts in the record that support the
claim of error.” (In re S.C. (2006) 138 Cal.App.4th 396, 408.) “[C]onclusory claims of
error will fail.” (Ibid.) We may consider factual or legal claims that are unsupported by
citations to the record or legal authority as waived. (Grant-Burton v. Covenant Care, Inc.
(2002) 99 Cal.App.4th 1361, 1379 (Grant-Burton) [regarding unsupported factual
assertions]; (People v. Stanley (1995) 10 Cal.4th 764, 793 (Stanley) [regarding
unsupported legal arguments].)
       2. Waiver



                                             19
       As defendants point out, plaintiff, other than requesting that he be allowed to
testify at the hearing on defendants’ motion regarding certain matters, did not raise below
any of his due process, Evidence Code, or other vexatious litigant statutes claims. He
does not contend otherwise, nor does he argue why we should consider these claims
despite his failure to raise them below. We conclude he has waived all of these claims,
other than, to a limited extent, his claim that he should have been allowed to testify at the
hearing. (Ochoa, supra, 61 Cal.App.4th at p. 1488, fn. 3.) But even if the claims were
not waived, they would still fail, as they have no merit.
       3. The Claims Have No Merit
              a. Plaintiff’s “Retrial” Claim
       Plaintiff first argues the trial court erred by allowing defendants to argue at the
hearing that the evidence established plaintiff was a vexatious litigant, although plaintiff
did not dispute he had been declared a vexatious litigant. He asserts this was a “retrial”
of his status as a declared vexatious litigant that “seems to run against the plain and
unambiguous language of the [vexatious litigant statutes] and the mandate of Shalant.”
and “defies notions of res judicata and collateral estoppel.” Also, plaintiff argues he
should not have been subjected to such a “retrial” because the previous determinations
that he was a “vexatious litigant” were not based on “the same or similar facts” of the
current case, as required by section 391, subdivision (b)(4), and the other definitions of a
“vexatious litigant” contained in section 391, subdivision (b) apply only to persons
appearing in propria persona. (§ 391, subds. (b)(1)-(3).) Finally, he asserts the
declaration that he is a “vexatious litigant” amounts to a “permanent branding” that
“transcends the distinction between represented and self-represented and prior or future
actions.”
       Most of plaintiff’s “retrial” arguments are properly disregarded because they are
conclusory and unsupported by legal authority. (In re S.C., supra, 138 Cal.App.4th at p.
408; Stanley, supra, 10 Cal.4th at p. 793.) Plaintiff also ignores that defendants, in order
to win their motion, had the burden of showing he qualified as a “vexatious litigant”
under the definitions contained in section 391, subdivision (b). (Muller II, supra, 2


                                             20
Cal.App.3d at p. 464; §§ 391.1, 391, subd. (b).) Short of the parties stipulating that he
did so—which plaintiff does not contend occurred here—we see no reason why
defendants should not be allowed to argue the matter at the hearing to ensure they met
their burden.
       As for plaintiff’s argument that a “retrial” was improper because he did not qualify
as a “vexatious litigant” under section 391, subdivision (b), we disagree. Defendants did
not argue he qualified as a vexatious litigant under section 391, subdivision (b)(4),
making it irrelevant. Plaintiff is correct that section 391, subdivisions (b)(1) through (3)
refer to persons acting in propria persona, but this has no bearing on whether he could be
ordered, as a represented party, to furnish security pursuant to section 391.1. As already
discussed, the analyses and holdings in Shalant, supra, 51 Cal.4th 1164, Muller I, supra,
2 Cal.App.3d 438, Camerado, supra, 12 Cal.App.4th 838, and Flores, supra, 191
Cal.App.4th 881 make clear he could be ordered to do so.
                b. Plaintiff’s Notice Claim
       Plaintiff next argues his due process rights were violated because his counsel “had
no reason to suspect the court would broadly construe case law so as to rule plaintiff was
subject to the “furnish security” remedy, even though he was represented by counsel.
Muller I, supra, 2 Cal.App.3d 438 and Camerado, supra, 12 Cal.App.4th 838, published
well before defendants brought their motion, gave him ample notice of this possibility.
                c. Plaintiff’s Claim Regarding McKay’s Hearing Statements
       Next, plaintiff asserts the trial court erred in allowing defendant McKay, who
appeared at the hearing as counsel for defendants, to make improper, unsworn statements
about plaintiff’s litigiousness in an effort to smear plaintiff and mislead the court.
Plaintiff also asserts he had the right to cross-examine McKay. We conclude, based on
our review of the hearing transcript, that McKay did nothing more than properly argue
the motion. And we know of no rule that allows a counsel to be “cross-examined.”
                d. Plaintiff’s Claim About His Testifying at the Hearing
       Plaintiff also argues the trial court improperly “rebuked” his request to testify. He
contends this was necessary because his counsel, Missud, could not rebut McKay’s


                                              21
“unsworn testimony” about the previous action, since Missud was not plaintiff’s attorney
in that matter, and that the trial court’s denial violated the vexatious litigant statutes and
plaintiff’s due process right to be heard.
       Plaintiff’s claim ignores that the trial court, while not allowing plaintiff to testify,
did allow Missud to make an offer of proof about plaintiff’s proposed testimony. After
conferring with plaintiff, Missud referred to defendants’ contentions about plaintiff’s past
litigiousness: “[Plaintiff] has reiterated that many of the motions, files, pleadings, cases
that McKay has referenced were not in relation to the instant dispute. A portion of them
were, of course. [¶] A vast majority of them were family law-related matters and writs,
and as of late he has also been very heavily involved in a forced sale of his condominium,
which again stems from an illegal and invalid order that was issued on October 19th by
Judge Woolard. [¶] [Plaintiff] has pretty much been buried in paperwork, and is creating
more paperwork so that he can again redress the geometrically increasing violations of
law that have stemmed from Judge Woolard’s original order compelling arbitration based
on a defunct superceded [sic] [TICA].” Nothing in plaintiff’s offer related to McKay’s
characterizations about the prior case. Moreover, it makes little sense that plaintiff’s
attorney could not address the prior action because he did not represent plaintiff at that
time. Attorneys routinely address the facts and circumstances of matters in which they
were not involved.
       As for plaintiff’s right to be heard, section 391.2 provides that the court “shall
consider any evidence, written or oral, by witnesses or affidavit, as may be material to the
ground of the motion.” (§ 391.2.) However, plaintiff fails to explain why he was entitled
to testify about the matters raised by Missud in his offer of proof on literally a moment’s
notice, having first indicated he wanted to testify during the hearing itself. California
Rules of Court, rule 3.1306 provides, regarding motions, that “[a] party seeking
permission to introduce oral evidence, except for oral evidence in rebuttal to oral
evidence presented by the other party, must file, no later than three court days before the
hearing, a written statement stating the nature and extent of the evidence proposed to be
introduced and a reasonable time estimate for the hearing.” (Cal. Rules of Court, rule


                                              22
3.1306(b).) Plaintiff did not satisfy these requirements. In light of his failure to do so,
and his counsel’s limited offer of proof, plaintiff fails to establish the court was required
to allow him to testify.
              e. Plaintiff’s Claim That The Court Could Not Rely on Affidavits
       Next, plaintiff asserts the trial court’s grant of defendants’ motion lacked any
evidentiary basis because the court improperly relied on “hearsay declarations” by
defendants Coombs.8 As plaintiff acknowledges, section 391.2 provides that the court
“shall” consider evidence submitted by “witnesses or affidavit, as may be material to the
ground of the motion” at the hearing of a “furnish security” motion. (§ 391.2, italics
added.) Plaintiff nonetheless argues the court’s reliance on declarations by Coombs and
McKay alone violated his due process rights and the Evidence Code.
       Plaintiff is incorrect. He cites only one case in support of his argument, Elkins v.
Superior Court (2007) 41 Cal.4th 1337. The case has no relevance here. The Elkins
court ruled that evidence in marriage dissolution trials could not be limited to written
declarations because such trials were required to follow the same general statutory rules
of procedure governing civil trials. (Elkins, at p. 1345.) The court’s decision was based
on statutory, not constitutional, considerations regarding trials—statutes that have no
relevance to the present case. (Ibid.)
       Plaintiff also argues that, while courts are permitted to rely on affidavits in certain
motion matters pursuant to Code of Civil Procedure section 2009 (as indicated in Elkins,
supra, 41 Cal.4th at p. 1355), “there is nothing in this statute that authorizes their
admission in [vexatious litigant statutes] hearings.” This is incorrect. Our independent
research indicates that “Code of Civil Procedure section 2009 generally permits the use
of affidavits in hearings on motions in civil litigation.” (Estate of Bennett (2008) 163
Cal.App.4th 1303, 1309.) Most importantly, and unaddressed further by plaintiff, section
391.2 unambiguously authorizes courts to consider affidavits, including when no

       8
         Plaintiff also argues the court could not rely on McKay’s “unsworn statements”
at the hearing. We have already determined plaintiff’s claim regarding McKay’s
statements at the hearing lack merit.


                                              23
testimony is presented (since courts may consider “witnesses or affidavits.” (§ 391.2,
italics added.)
       In this same discussion section, plaintiff also asserts McKay “mischaracterized”
plaintiff’s complaint for breach of the CC&Rs as an affirmative defense that was or
should have been resolved in the prior action, and proceeds to make various factual
assertions without citations to the record. Plaintiff does not explain the relevance of his
assertions to whether the court could rule on the motion based on affidavits, cite legal
authority, nor cite to the record for his factual contentions. Therefore, we disregard his
argument. (Weller, supra, 233 Cal.App.2d at p. 246; In re S.C., supra, 138 Cal.App.4th
at p. 408; Grant-Burton, supra, 99 Cal.App.4th at p. 1379; Stanley, supra, 10 Cal.4th at
p. 793.)
              f. We Disregard Plaintiff’s Contentions About Prior Litigations
       Finally, plaintiff contends defendants, in arguing that he qualified as a “vexatious
litigant” because of his unsuccessful pursuit in propria persona of at least five prior
litigations in the preceding seven years, referenced “numerous writs, petitions, and
pleadings” that were summarily denied or involved peremptory challenges to a particular
judge. According to plaintiff, these should not have been considered as having been
finally “ ‘adversely determined’ ” against him and, therefore, could not be relied upon to
find that he was a “vexatious litigant” pursuant to section 391, subdivision (b)(1).
       As we have already indicated, plaintiff has waived this and almost all of the other
appellate claims discussed in this subpart by his failure to first raise them in the trial court
below. (Ochoa, supra, 61 Cal.App.4th at p. 1488, fn. 3.) Plaintiff also does not support
his factual contentions with proper citations to the record and, therefore, they are properly
disregarded. (In re S.C., supra, 138 Cal.App.4th at p. 408; Grant-Burton, supra, 99
Cal.App.4th at p. 1379.) We thus do not further address these new contentions.


                                   II. Case No. A134759
       In Case No. A134759, plaintiff appeals from the trial court’s order awarding
defendants Coombs and Woods attorney fees as part of their costs.


                                              24
A. The Relevant Proceedings Below
       After plaintiff’s case was dismissed because he did not furnish security,
defendants Coombs and Woods moved to fix the amount of attorney fees as an item of
costs. They argued they were prevailing parties entitled to recover costs pursuant to
section 1032, subdivision (b) and, pursuant to section 1033.5, subdivision (a) (10),
entitled to fees under section 15.12 of the TICA. They sought $30,420 in fees.9
       Plaintiff opposed the motion. He served notice of the oral testimony of each of the
defendants, stating they would address matters related to the allegations in his complaint,
and sought judicial notice of certain court documents that purportedly proved a
propensity of the judicial defendants “to ignore fraud on the court.” In his written
opposition, he contended there was no contractual basis for awarding attorney fees
because the CC&Rs superseded the TICA (which he asserted McKay again had
concealed from the court); “the scope of the [TICA] cannot rationally or reasonably be
expected to extend to an action brought for a breach of the [CC&Rs];” awarding attorney
fees under the terminated TICA would mean “the court will be rearguing the very issue at
the heart” of plaintiff’s pending appeal of the first action, thereby depriving the appellate
court of jurisdiction over the issue”; and there was no statutory basis for an award of
attorney fees under the vexatious litigant statutes.10
       After hearing, the court ordered plaintiff to pay Coombs and Woods $27,000 for
prejudgment attorney fees, based on 90 hours of attorney time at a rate of $300 an hour,
without further analysis.




B. The Attorney Fees Were Properly Awarded, and are Supported
       As discussed, defendants relied on two statutes and a contractual provision in the
TICA in arguing they were entitled to attorney fees as part of their costs. Section 1032,

       9
        Defendants also submitted a memorandum of costs for $1,310.
       10
         Plaintiff also argued defendant’s costs memorandum should be dismissed as
untimely served and filed, and because it was not verified.


                                              25
subdivision (b) states, “Except as otherwise expressly provided by statute, a prevailing
party is entitled as a matter of right to recover costs in any action or proceeding.”
(§ 1032, subd. (b).) Section 1033.5, subdivision (a)(10) allows attorney fees to be
included as costs under section 1032, when the fees are authorized by contract. (§ 1033,
subd. (a)(10).) Section 15.12 of the TICA states:
       “In the event that any dispute between the Parties related to this Agreement or to
the Property should result in litigation or arbitration, the prevailing Party in such dispute
shall be entitled to recover from the other Party all reasonable fees, costs and expenses of
enforcing any right of the prevailing Party, including without limitation, reasonable
attorneys’ fees and expenses, all of which shall be deemed to have accrued upon the
commencement of such an action and shall be paid whether or not such action is
prosecuted to judgment. . . . For the purposes of this Section: (i) attorney fees shall
include, without limitation, fees incurred in the following: (a) postjudgment motions; (b)
contempt proceedings; (c) garnishment, levy, and debtor and third Party examinations;
(d) discovery; and (e) bankruptcy litigation, and (ii) prevailing Party shall mean the Party
who is determined in the proceeding to have prevailed or who prevails by dismissal,
default or otherwise.”
       The court’s order stated it had considered the written and oral arguments of the
parties, “and proof having been made to the satisfaction of the court,” granted
defendants’ motion. In short, its order was based on these provisions.
       We begin with the observation that plaintiff incorrectly characterizes the court’s
order as “fee sanctions” and appealable pursuant to section 904.1, subdivision (a)(12),
which relates to monetary sanctions, and section 904.1, subdivision (a)(10), which relates
to orders made under the Probate Code or Family Code. Neither is a proper basis for his
appeal. However, the court’s order is appealable pursuant to section 904.1, subdivision
(a) as an order made after entry of an appealable judgment, and thus appropriate for
review.
       1. Plaintiff Has Waived His Civil Code Section 1717 Claim



                                              26
       Plaintiff first argues the trial court erred by imposing “fee sanctions” without
considering criteria for determining the prevailing party under Civil Code section 1717.
Also, he contends, fees are not permitted under Civil Code section 1717, including
because he purportedly voluntarily dismissed the action before trial by not furnishing
security.
       Although defendants do not raise the issue, plaintiff has waived his Civil Code
section 1717 claim. Defendant moved for an award of fees as part of their costs pursuant
to sections 1032, subdivision (b) and 1033.5, subdivision (a)(10), and section 15.12 of the
TICA. They did not move based on section 1717, nor did plaintiff argue below that the
court should consider any provisions of section 1717, including because he purportedly
voluntarily dismissed his action. Plaintiff only mentioned section 1717 in his opposition
once, without arguing it was a basis for denying defendants’ motion. Therefore, he has
waived his Civil Code section 1717 claim, and we do not further address it. (Ochoa,
supra, 61 Cal.App.4th at p. 1488, fn. 3; Benjamin, Weill & Mazer, supra, 194
Cal.App.4th at pp. 53-54.)
       2. Plaintiff’s Arguments Lack Merit
       In the remainder of his arguments, plaintiff for the most part contends that, as a
matter of law, the court erred in ordering him to pay attorney fees because there was not a
contractual basis for such an order. We apply a de novo standard of review (Exxess
Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th 698, 705), using settled rules of
contract interpretation designed to give effect to the mutual intent of the parties.
(Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1605.) Where
contract language is clear and does not lead to absurd results, we ascertain intent from the
written terms alone. (Ibid.)
       Plaintiff concedes that, pursuant to section 15.12 of the TICA, a party was entitled
to recover reasonable attorney fees as a prevailing party in litigation on “any dispute
between the Parties related to this Agreement or to the Property.” By its plain language,
this provision has a broad scope that includes disputes related to the property, not just
those limited to the TICA itself. Plaintiff does not contend otherwise. Instead, he argues


                                             27
the court erred in ordering him to pay attorney fees because of the nature of the vexatious
litigant statutes and the terms of the TICA, for three independent reasons:
       Plaintiff first argues that a dismissal pursuant to the vexatious litigant statutes is
not a determination related to either the TICA or the property and, therefore, not within
the scope of section 15.12 of the TICA. He correctly points out that the trial court’s
ruling on defendants’ “furnish security” motion cannot be considered to be a
determination of any issue in the litigation, or its merits. (§ 391.2.) Therefore, plaintiff
asserts, there was no contractual basis for ordering him to pay attorney fees.
       Second, plaintiff argues that a motion under the vexatious litigant statues is not a
tort claim for which defendants are entitled to attorney fees under section 15.12 of the
TICA. Even if the motion were construed to be a tort claim, the parties did not agree to
be bound by the vexatious litigant statutes in the TICA.
       Third, there is no express or implied agreement under any contract between the
parties, including the TICA and CC&Rs, that provides for recovery of attorney fees in
litigation under the vexatious litigant statutes or the anti-SLAPP statute (a reference
whose relevance is not explained by plaintiff). Plaintiff summarizes his argument as
follows:
       “[A] dismissal under the [vexatious litigant statutes] precludes the parties from
ever reaching the ‘merits’ of their disputes as to which agreement, the TICA or CC&Rs,
applies or was breached. None of the contract claims or contentions related to the dispute
over the TICA and the CC&Rs was ever reached. When the merits of the complaint have
never been reached because of dismissal under the [vexatious litigant statutes], it cannot
reasonably be argued that the ‘vexatious litigant motion’ is related to the TICA or the
CC&Rs. Further, McKay included hundreds of pages of pleadings from other cases
submitted to show that [plaintiff] was a ‘vexatious litigant.’ That ‘evidence’ relates not
to the present contract action or dispute but to previous actions and was submitted to
establish [plaintiff’s] status as a ‘vexatious litigant.’ ”
       Plaintiff’s arguments fail for multiple reasons. First, much of his arguments are
conclusory, unaccompanied by citations to legal authority or the record. For example, he


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presumes that section 15.12 of the TICA does not extend to the dismissal in the present
case without much explanation or discussion; such deficient argument is properly
disregarded. (In re S.C., supra, 138 Cal.App.4th at p. 408; Grant-Burton, supra, 99
Cal.App.4th at p. 1379; Stanley, supra, 10 Cal.4th at p. 793.)
       Second, the arguments are unpersuasive for a simple reason: section 15.12 of the
TICA plainly provides for a prevailing party to recover attorney fees upon dismissal of an
action that results from a dispute between the parties related to the TICA or the property.
The plain language of section 15.12 indicates this includes a prevailing party’s recovery
of attorney fees “whether or not such action is prosecuted to judgment,” and includes
those parties who are “determined in the proceeding to have prevailed or who prevails by
dismissal, default or otherwise.” (Italics added.) This language unambiguously indicates
a party is entitled to attorney fees if they prevail by dismissal for any reason (i.e., “by
dismissal . . . or otherwise”) of a qualifying action. This includes a dismissal pursuant to
section 391.4 resulting from a plaintiff’s failure to furnish security, as was the case here.
Plaintiff’s legal arguments fail in the face of this unambiguous language.
       Finally, plaintiff argues in a single paragraph in his opening brief that defendants
were not entitled to recover attorney fees pursuant to section 1033.5 and the TICA
because the TICA terminated and was superseded by the CC&Rs. Once more, his
argument is conclusory, unaccompanied (except for a single, unexplained reference to
Civ. Code, § 1352) by citations to legal authority or the record. Such deficient argument
is properly disregarded. (In re S.C., supra, 138 Cal.App.4th at p. 408; Grant-Burton,
supra, 99 Cal.App.4th at p. 1379; Stanley, supra, 10 Cal.4th at p. 793.)
       Plaintiff does devote more than a dozen pages to this subject in his reply brief,
interspersed with inappropriate ad hominem attacks on McKay for his work as attorney
for the defendants. We disregard these additional arguments for three reasons. First,
much of it is conclusory and unaccompanied by citations to law or the record. (In re
S.C., supra, 138 Cal.App.4th at p. 408; Grant-Burton, supra, 99 Cal.App.4th at p. 1379;
Stanley, supra, 10 Cal.4th at p. 793.) Second, plaintiff presented a very limited amount
of argument to the trial court, thereby waiving the remainder. (Ochoa, supra, 61


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Cal.App.4th at p. 1488, fn. 3.) Third, and most importantly, plaintiff has tardily made
these additional arguments in his reply brief, rather than his opening brief, without
providing good cause for doing so. (Campos v. Anderson (1997) 57 Cal.App.4th 784,
794, fn. 3.)
                                     DISPOSITION
       The orders appealed from are affirmed. Defendants are awarded costs of appeal.




                                                  _________________________
                                                  Richman, J.


We concur:


_________________________
Kline, P.J.


_________________________
Haerle, J.




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