Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County No. 721719 David B. Oberholtzer, Judge.
HALLER, J.
In this appeal A. Waheed Chaudry challenges postjudgment orders related to efforts by the Whispering Ridge Homeowners Association (the Association) to collect on outstanding judgments for attorney fees and costs owed by Chaudry. The Association responds that the appeal is frivolous and sanctions should be imposed. It also argues that Chaudry should be declared a vexatious litigant.
The record shows that Chaudry, acting in propria persona, has repeatedly sought recourse on appeal to delay the Association's efforts to enforce the awards for attorney fees and costs. As we shall explain, Chaudry's current appeal has no merit and seeks to improperly litigate matters settled in prior appeals. We hold the appeal is a frivolous one filed for dilatory purposes, and that sanctions are warranted. Further, after reviewing the current appeal and the lengthy span of Chaudry's postjudgment appellate litigation, we hold Chaudry should be declared a vexatious litigant subject to an appellate prefiling order in this litigation with the Association.
In its briefing on appeal, the Association asserted that the appeal was frivolous and requested an order declaring Chaudry a vexatious litigant. We construed the Association's argument as a request to file a vexatious litigant motion, granted the request, and set a timeline for the Association to file its motion, including any request for sanctions, and for Chaudry to respond. In our order we informed Chaudry he could present affidavits and/or other documentary evidence concerning the vexatious litigant motion. Chaudry argued against the vexatious litigant and frivolous appeal claims in his reply brief, but did not file a formal opposition to the Association's vexatious litigant motion.
Overview
This case involves protracted litigation over the Association's efforts to enforce attorney fees and cost awards that it obtained against Chaudry following a 1999 declaratory relief judgment declaring the Association's right to enforce the landscaping provisions in its CC&R's. The CC&R's contain a provision entitling the prevailing party to attorney fees. Over the years, Chaudry has been ordered to pay attorney fees associated with the original trial resulting in the declaratory relief judgment, his appeal from the declaratory relief judgment, a contempt proceeding seeking to enforce the declaratory relief judgment, and several appeals he filed challenging the trial court's fee calculations. Recognizing Chaudry's practice of repeatedly appealing the trial court's fee calculations and seeking to end this cycle, in two of the appeals we exercised our authority to calculate the amount of fees owed for the appeal and ordered Chaudry to pay them.
For convenience, we refer to the various awards as fee awards, without specifying both fees and costs.
By 2004, five fee awards were final and were contained in trial court judgments or appellate court remittiturs. Four of these awards remain unsatisfied. In 2004 and 2006, the Association sought to enforce these four awards by filing writs of execution and interest declarations. In 2009, we filed an opinion rejecting numerous arguments raised by Chaudry to challenge the Association's right to enforce the four awards. Our 2009 opinion unequivocally stated that the Association had the right to enforce the four awards.
The current appeal concerns the Association's continued enforcement efforts on remand after our 2009 opinion. Rather than accept the enforceability of the four awards, Chaudry has filed this appeal and once again raises numerous challenges to their enforcement. We conclude his contentions are meritless; this appeal has been filed solely for purposes of delay and harassment and warrants sanctions; and Chaudry should be declared a vexatious litigant because he is abusing the appellate process.
FACTUAL AND PROCEDURAL BACKGROUND
Chaudry's Repeated Appeals Concerning the Attorney Fee Awards
The original dispute between Chaudry and the Association arose when Chaudry failed to landscape his yard as required by the CC&R's. The Association filed a lawsuit against Chaudry, and in July 1999 obtained a declaratory relief judgment against him providing that it was entitled to enforce the landscaping provisions. In June 2000, the trial court awarded $22,437.22 in fees to the Association for the declaratory relief trial. In two separate appeals, Chaudry challenged the declaratory relief judgment and the attorney fees award. (Whispering Ridge Homeowners Association v. Chaudry (Sept. 25, 2001, D034624) [nonpub. opn.]; Whispering Ridge Homeowners Association v. Chaudry (July 8, 2003, D036167) [nonpub. opn.].)
In 2001, we affirmed the declaratory relief judgment, and ordered Chaudry to pay fees for the appeal, leaving the calculation of the amount to the trial court on remand. (Whispering Ridge Homeowners Association v. Chaudry, supra, D034624.) On remand in July 2002, the trial court calculated that Chaudry owed $17,693.90 in fees for the appeal of the declaratory relief judgment. Additionally, in October 2002, the trial court ordered Chaudry to pay $5,245.20 in fees for a contempt proceeding filed by the Association for his failure to comply with the declaratory relief judgment. Chaudry filed an appeal challenging these two awards. (Whispering Ridge Homeowners Association v. Chaudry (May 28, 2004, D041077) [nonpub. opn.]; Whispering Ridge Homeowners Association v. Chaudry (April 20, 2009, D050631, D052506) [nonpub. opn.].)
In 2003, we affirmed the fees awarded by the trial court for the declaratory relief trial. This time, with the goal of circumventing another round of litigation and another appeal, we did not remand the matter to the trial court for the calculation of fees on appeal. Instead, we obtained documentation from the Association and ordered Chaudry to pay $9,884 for the appeal. (Whispering Ridge Homeowners Association v. Chaudry, supra, D036167.)
In 2004, we affirmed the trial court's calculation of $17,693.90 in fees for the appeal of the declaratory relief judgment and $5,245.20 in fees for the contempt proceeding. Again, we calculated the amount of appellate fees, ordering Chaudry to pay $12,713.85 for the appeal. (Whispering Ridge Homeowners Association v. Chaudry, supra, D041077.)
As of 2004, there were four outstanding awards owed by Chaudry, two of which were contained in trial court judgments, and two of which were set forth in appellate court remittiturs. These four awards are: First award: $17,693.90 trial court judgment for fees incurred in the appeal of the declaratory relief judgment. Second award: $5,245.20 trial court judgment for fees incurred in the contempt proceeding. Third award: $9,884 appellate court remittitur for fees incurred in the appeal of the fees awarded for the declaratory relief trial. Fourth award: $12,713.85 appellate court remittitur for the fees incurred in the appeal of the trial court's calculations of the first and second awards. (Whispering Ridge Homeowners Association v. Chaudry, supra, D050631, D052506).)
Chaudry has apparently paid the initial award, consisting of the fees for the declaratory relief trial.
Chaudry's Appeals Concerning the Association's Efforts to Enforce the Four Awards
With the various fee awards finally determined on appeal, in 2004 the Association pursued enforcement efforts on the four outstanding awards. During these enforcement proceedings, the trial court ruled that the Association did not need to file a cost memorandum to pursue the fees awarded in our appellate court remittitur for the fourth award. In December 2004 Chaudry appealed this ruling, arguing that a cost memorandum was required and that the trial court was required to consider his challenges to the amount of fees set forth in the cost memorandum. In 2006, we resolved the appeal adversely to Chaudry, stating that our appellate court remittitur was a conclusive adjudication of the amount of fees owed, the fees could not be relitigated before the trial court, and hence a cost memorandum was not necessary. (Whispering Ridge Homeowners Association v. Chaudry, supra, D045676.)
The Association had initially thought it needed to file cost memoranda with the trial court for the fees awarded in the appellate court remittiturs, and had done so for the fourth award. (The Association had also submitted a cost memorandum for the third award, but the trial court did not allow the filing because it was untimely.) Thereafter, the Association recognized that our remittitur was a final calculation of the fee amount, and the trial court agreed and struck the memorandum as surplusage. (Whispering Ridge Homeowners Association v. Chaudry (Feb. 24, 2006, D045676) [nonpub. opn.].)
Meanwhile, in November 2004 the Association obtained four writs of execution to collect the amounts in the four awards. Chaudry filed a motion in the trial court to recall the writs of execution, formulating a factually unsupported argument that the Association had waived its rights to enforce the first three awards. Chaudry derived this waiver argument by extracting a statement entirely out of context made by the Association during the proceedings concerning the cost memorandum for the fourth award. During these latter proceedings, the Association had submitted a cost memorandum to the trial court for the fourth award which set forth an amount that was slightly larger than the amount awarded in our appellate court remittitur for this award. Thereafter, the Association clarified that it only sought to enforce the amount allowed in the appellate court remittitur for the fourth award. Based on this clarifying statement (which had nothing to do with the first three awards), Chaudry argued that the Association had waived its right to enforce the first three awards. Misled by Chaudry's argument, in June 2005 the trial court (Judge Patricia Cowett) found the Association had waived enforcement of the first three awards. (Whispering Ridge Homeowners Association v. Chaudry, supra, D050631, D052506.)
Thereafter, in October 2006, the Association obtained four new writs of execution and filed four interest declarations for the four awards. Chaudry moved to recall the writs and to strike the interest declarations, citing the trial court's previous waiver order. The trial court concluded that its previous waiver order had been incorrect, and accordingly denied Chaudry's motions to recall the writs and strike the interest declarations for the first three awards on the basis of the waiver order. Chaudry also argued the third and fourth awards were procedurally deficient because the appellate court remittiturs for these awards had not been entered as trial court judgments. The trial court granted Chaudry's motion to recall the third and fourth writs based on this procedural deficiency, without prejudice to the Association's right to correct the error by obtaining judgments on the appellate court remittiturs. (Whispering Ridge Homeowners Association v. Chaudry, supra, D050631, D052506.)
Chaudry challenged these rulings on appeal. In April 2009, we affirmed the trial court's orders and held that the Association was entitled to enforce all four awards. We concluded that although it was too late for the trial court to change its waiver order for the first three awards, the erroneous order did not bar enforcement given that the awards could be enforced as judgments and the judgments were still viable. Further, we held the procedural deficiency for the third and fourth awards (i.e., they had not yet been entered as trial court judgments) was not a bar to enforcement. (Whispering Ridge Homeowners Association v. Chaudry, supra, D050631, D052506.) Thus, based on our 2009 decision, the Association had viable writs of execution and interest declarations for the first two awards based on the trial court judgments, and was entitled to secure new interest declarations and writs of execution for the third and fourth awards once it obtained entry of trial court judgments on our appellate court remittiturs.
Chaudry's Current Appeal Concerning Continued Enforcement Proceedings
In January 2008 the Association had corrected the procedural deficiency for the third and fourth awards by obtaining trial court judgments based on the appellate court remittiturs. Thereafter, following the issuance of our April 2009 decision confirming the Association's right to enforce the four awards, in July 2009 the Association filed four new interest declarations.
On August 18, 2009, Chaudry moved to strike the four interest declarations, asserting: (1) they did not give adequate notice of the underlying awards and method of calculation; (2) interest could not be awarded on attorney fee awards; (3) an appellate court does not have authority to determine the amount of attorney fees; and (4) the January 2008 trial court judgments on the appellate court remittiturs were void because (a) they were entered while his appeal concerning the procedural deficiency was pending, (b) no cost memoranda had been filed with the trial court for the third and fourth awards, and (c) the judgments were obtained by the Association's counsel's fraudulent concealment of the absence of cost memoranda. Chaudry also asserted that a fifth interest declaration was served on him by the Association and challenged the propriety of that declaration.
In rulings filed on November 23, 2009 and January 8, 2010, the trial court rejected Chaudry's substantive challenges to the interest declarations. The trial court concluded that Chaudry's motion was "a sham" and that it was "transparently frivolous... designed solely to delay levy and force [the Association] to spend more money and time in its rightful collection of its attorneys fees." The court stated the entry of trial court judgments on the appellate court remittiturs was a ministerial act not barred by the pending appeal; the trial court judgments on the appellate court remittiturs cured the procedural deficiency for the third and fourth awards; the Association had properly calculated interest from the date of the trial court judgments rather than the appellate court remittiturs; and the Association was entitled to recover the four awards. Rejecting Chaudry's additional assertions, the trial court found that he could readily correlate the interest declarations with the four awards and calculate the interest due; the Association was entitled to interest on the fee awards; the issue of appellate court authority to determine the amount of fees was not properly before the trial court; and there were no jurisdictional defects and no misconduct by opposing counsel.
The November 23 ruling was in response to Chaudry's motion to strike the interest declarations, and the January 8 ruling was in response to Chaudry's new trial motion concerning the November 23 ruling.
With respect to Chaudry's complaint about a fifth interest declaration, the trial court found no such declaration had been filed with the court. In its responding papers filed with the court, the Association stipulated that it was not pursuing a fifth interest declaration.
Meanwhile, on August 18, 2009, the Association obtained four new writs of execution. In its January 8, 2010 ruling, the trial court on its own motion recalled these writs of execution (and struck the interest declarations) because they had been issued when there was no valid appellate court remittitur following our April 2009 decision due to our recall of the remittitur for clerical error. Recognizing that this problem had now been resolved by our reissuance of our remittitur, the trial court stated the Association could secure a new set of updated interest declarations and writs of execution.
The 2009 writs of execution are not included in the appellate record, but they are referred to in the trial court's rulings.
We originally issued our remittitur for our April 2009 decision on July 14, 2009, and on July 29, 2009 the Association filed the interest declarations. On August 17, 2009, we recalled our remittitur for clerical error, and then reissued our corrected remittitur on August 31, 2009.
Chaudry filed a notice of appeal from the trial court's November 23 and January 8 rulings.
DISCUSSION
I. Chaudry's Appellate Arguments Are Meritless
In his current appeal, Chaudry repeats the arguments he made to the trial court during the most recent enforcement proceedings, and presents some additional arguments. These contentions are meritless.
A. Arguments Raised Before the Trial Court
The trial court properly rejected each of Chaudry's challenges to the most recent interest declarations and writs of execution. The trial court correctly determined that Chaudry can easily correlate the four interest declarations with the four awards, and any questions in this regard would not rise to the level of a due process violation. Additionally, the Association has the right to interest on the judgments for fee awards (8 Witkin, Cal. Procedure (5th ed. 2008) Enforcement of Judgment, § 42, p. 83, § 53, p. 94; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 978, p. 1026), and an appellate court is authorized to calculate the amount of fees (9 Witkin, Cal. Procedure, supra, Appeal, § 980, p. 1027). Further, an appellate court remittitur is a conclusive determination of the amount of fees owed (see Whispering Ridge Homeowners Association v. Chaudry, supra, D045676); it is not necessary to file cost memoranda with the trial court to enforce these fees (ibid.); and the trial court's January 2008 entry of judgment on our remittiturs awarding these fees was a purely ministerial act not barred by a pending appeal (see Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 191). Because no cost memoranda were required, the Association's counsel could not have engaged in misconduct by failing to inform the court there were no cost memoranda. Finally, Chaudry's concern about the fifth interest declaration is of no moment given that it was never filed with the court and the Association stipulated it was not pursuing a fifth interest declaration.
B. Jurisdictional Challenge to Trial Court's January 8 Order
Chaudry also raises a jurisdictional challenge to one of the trial court's rulings in its January 8, 2010 order adjudicating Chaudry's new trial motion. (See. fn. 5, ante.) He contends the trial court had no jurisdiction to recall the writs of execution and strike the interest declarations based on the recall of our appellate court remittitur for clerical error. The contention is unavailing. The interest declarations were at issue in Chaudry's new trial motion, and the trial court was authorized to enter an order concerning them. Further, because the matter was still pending before the trial court, the court had the inherent authority to recall the writs and order their reissuance regardless of whether Chaudry had filed a motion to recall the writs. (See Le Francois v. Goel (2005) 35 Cal.4th 1094, 1104-1105.) Indeed, in his new trial motion Chaudry questioned why the court had not stricken and recalled these documents given that it had stated its intent to do so in a prior tentative decision.
C. Jurisdictional Challenge to 2007 Orders
For the first time on appeal, Chaudry presents a jurisdictional challenge to two trial court orders that we reviewed and affirmed in our April 2009 decision. He argues that these two orders (one issued in September 2007 and the other in December 2007) are void on their face for lack of subject matter jurisdiction because the trial court had lost jurisdiction to rule on the matters at issue based on an appeal he filed in April 2007.
Briefly, the proceedings at issue during this time period involved two motions filed by Chaudry: one to strike the October 2006 interest declarations and the other to recall the October 2006 writs of execution. The trial court ruled on the motion to strike the interest declarations in January and March 2007, and Chaudry filed an appeal from these orders in April 2007. Thereafter, Chaudry filed a motion to recall the writs of execution, arguing the writs on their merits and also requesting that the writs be stayed pending resolution of the April 2007 appeal. In September and December 2007, the trial court ruled on the motion to recall the writs, adjudicating their substantive and procedural merits and also granting Chaudry's request to stay their execution pending resolution of the April 2007 appeal. In February 2008, Chaudry appealed from these latter orders. In our April 2009 decision, we consolidated the two appeals concerning the interest declarations and writs of execution, and resolved the issues presented in them.
Chaudry now argues for the first time on appeal that because of the pending April 2007 appeal, at the time of the September and December 2007 orders the trial court had jurisdiction only to stay the writs, not to adjudicate their merits. He further asserts our April 2009 decision affirming the September and December 2007 orders is likewise void because it was based on void trial court orders.
We reject these assertions. First, ordinarily we do not consider issues raised for the first time on appeal, and we decline to do so in this instance. (9 Witkin, Cal. Procedure, supra, Appeal, § 400, p. 458.) Second, even under the logic of Chaudry's argument, our 2009 decision is not void to the extent it resolved the issues raised in the April 2007 appeal arising from the January and March 2007 orders. Third, as we stated in our 2009 decision, regardless of problems that have occurred in the enforcement proceedings, the four attorney fee awards are still contained in viable judgments and they remain enforceable through a new set of writs of execution. (Whispering Ridge Homeowners Association v. Chaudry, supra, D050631, D052506.)
Chaudry's arguments are meritless.
II. The Appeal is Frivolous
Having rejected the merits of Chaudry's current appeal, we consider whether it is also frivolous. The failure to raise a meritorious argument on appeal does not, standing alone, establish the appeal is a frivolous one warranting sanctions. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) However, an appeal may properly be deemed frivolous and sanctions imposed "when [the appeal] is prosecuted for an improper motive — to harass the respondent or delay the effect of an adverse judgment — or when it indisputably has no merit — when any reasonable [person] would agree that the appeal is totally and completely without merit." (Id. at pp. 649-650; Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 461.) Chaudry's current appeal falls into this category.
As set forth above, the arguments raised by Chaudry before the trial court and reiterated in this appeal are completely without merit, and any reasonable person in Chaudry's position would know this. Chaudry certainly knew how to match the four interest declarations with the four awards. The Association's right to interest on the attorney fee judgments is indisputable, and Chaudry's raising this argument at this late stage of the enforcement proceedings shows his intent to present frivolous arguments to delay enforcement. Reflective of this, at the hearing on Chaudry's new trial motion, the trial court pointed out to Chaudry that this appellate court would not have issued a decision permitting the filing of interest declarations if interest was not permitted on judgments involving attorney fee awards.
Several of Chaudry's contentions are readily resolved merely by reading our previous opinions filed in this case. In our 2003 opinion determining the amount of attorney fees incurred on appeal, we set forth the law authorizing an appellate court to calculate the amount of fees incurred on appeal. (Whispering Ridge Homeowners Association v. Chaudry, supra, D036167.) In the 2006 opinion we held our appellate court remittitur was a conclusive determination of the amount of fees owed and thus a cost memorandum filed before the trial court was not needed. (Whispering Ridge Homeowners Association v. Chaudry, supra, D045676 ["As the trial court knew, it lacked jurisdiction to retry the attorney fees issue."].) Notwithstanding this clear holding, Chaudry raised the same cost memoranda argument in the appeal giving rise to our 2009 decision(Whispering Ridge Homeowners Association v. Chaudry, supra, D050631, D052506), and again in this appeal. Further, contrary to the clear import of our 2006 holding that our remittiturs conclusively set the amount of fees owed, Chaudry challenges the 2008 entry of judgment based on the remittiturs while his 2007 appeal was pending, and argues that the Association's counsel engaged in misconduct by failing to inform the court there were no cost memoranda.
Chaudry's argument in this appeal concerning a fifth interest declaration was unjustified given that the Association had expressly indicated during the proceedings below that it was not pursuing a fifth interest declaration. His assertion that the trial court had no jurisdiction at the hearing on his new trial motion to issue an order recalling and striking the writs and interest declarations due to the recall of our appellate court remittitur is spurious. As stated, in his new trial motion Chaudry himself had questioned why the trial court had failed to issue this ruling since it had stated its intent to do so in a previous tentative ruling.
When any reasonable person would agree an appeal is totally and completely without merit, this supports that the appellant filed it solely for delay. (See In re Marriage of Flaherty, supra, 31 Cal.3d at pp. 649-650.) The arguments made by Chaudry to the trial court and reiterated on appeal concerning the latest round of enforcement proceedings are patently meritless and include arguments that have been resolved in our prior opinions. His dilatory intent is evident.
This conclusion is buttressed by Chaudry's jurisdictional challenge, raised for the first time in this appeal, to the trial court's September and December 2007 orders. These orders were adjudicated in our 2009 appeal and have long been final. Chaudry himself requested that the trial court adjudicate the writs of execution at issue in these rulings and that we review the merits of these rulings on appeal. Although a party's conduct cannot confer subject matter jurisdiction where none exists (2 Witkin, Cal. Procedure (5th ed. 2008) Jurisdiction, § 13, p. 585), the fact that Chaudry explicitly requested the complained-of adjudication by the trial court points strongly to his dilatory motive for raising this assertion at this late date.
Additionally, as Chaudry knows from our 2009 decision, the four attorney fee awards remain viable as judgments and enforceable through writs of execution. Setting aside the September and December 2007 orders adjudicating the 2006 writs of execution would not preclude new writs of execution. Chaudry's belated jurisdictional challenge to the 2007 orders serves no purpose other than harassment and delay.
We conclude sanctions are warranted because of this frivolous appeal. We order Chaudry to pay the Association $7,500 as sanctions. (Cal. Rules of Court, rule 8.276(a)(1).)
The Association has submitted documentation showing the attorney fees and costs for this appeal and the vexatious litigant motion are $22,681.84, not including the charges for appearances at oral argument.
III. Chaudry Is a Vexatious Litigant on Appeal in this Litigation
The vexatious litigant law, set forth in Code of Civil Procedure section 391 et seq., provides a means for the courts to respond to the problems " 'created by the persistent and obsessive litigant, appearing in propria persona, who has constantly pending a number of groundless actions.' " (In re R.H. (2009) 170 Cal.App.4th 678, 688.) The vexatious litigant law seeks to constrain "repeated misuse [of the courts that] results in a useless diversion of the... court's attention and prejudices other... parties...." (Id. at p. 692.) The statute defines several categories of persons who may be declared vexatious litigants, including a person who "[i]n 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." (§ 391, subd. (b)(3), italics added.)
Subsequent unspecified statutory references are to the Code of Civil Procedure.
The vexatious litigant provisions seek "to protect the court system and its resources as well as other litigants [citations] while at the same time providing a workable means by which a vexatious litigant may proceed with litigation [citation]." (In re R.H., supra, 170 Cal.App.4th at p. 696.) Thus, a person who is declared a vexatious litigant does not lose the right of access to the courts, but rather may be subjected to a prefiling order prohibiting the litigant from filing any new litigation in propria persona without obtaining leave of the presiding justice. (§ 391.7, subd. (a); Bravo v. Ismaj, supra, 99 Cal.App.4th at pp. 221-222.) New litigation includes the filing of an appeal. (McColm v. Westwood Park Assn. (1998) 62 Cal.App.4th 1211, 1220-1221; In re R.H., supra, 170 Cal.App.4th at p. 695.) The presiding justice permits "the filing of that litigation only if it appears that the litigation has merit and has not been filed for the purposes of harassment or delay." (§ 391.7, subd. (b).) Although the vexatious litigant statute is frequently applied to plaintiffs who repeatedly file actions and appeals, a "defendant may be determined to be a vexatious litigant during the pendency of an action based on his or her conduct in that particular case...." (Mahdavi v. Superior Court (2008) 166 Cal.App.4th 32, 42, fn. 7;see In re R.H., supra, 170 Cal.App.4th at pp. 683, 691-693 [father who repeatedly filed appeals and writs to challenge dependency rulings declared vexatious litigant].)
In Mahdavi, we held that a prefiling order issued by our court against a plaintiff/appellant who we declared to be a vexatious litigant did not apply to a subsequent appeal in unrelated litigation in which the litigant was a defendant. (Mahdavi v. Superior Court, supra, 166 Cal.App.4th at pp. 34, 39-42.) However, we recognized in Mahdavi that a defendant who engaged in frivolous or delaying tactics during a pending case may be declared a vexatious litigant subject to a prefiling order. (Id. at p. 42, fn. 7; see also In re R.H., supra, 170 Cal.App.4th at p. 693.)
Chaudry has filed numerous appeals challenging the trial court's awards and/or calculations of attorney fees, including the fees incurred for the declaratory relief trial, for the contempt proceeding, and for the appeal of the declaratory relief judgment. Recognizing Chaudry's litigious tactics, we ourselves calculated the appellate fee awards in two of our appellate decisions. By 2004, all of the awards were finally determined and the Association was entitled to enforce them as judgments.
Instead of accepting these final determinations, Chaudry continued to pursue litigation, both at the trial and appellate level, to challenge the attorney fee awards. In December 2004, he appealed from the trial court's ruling that our appellate court remittitur calculating the fourth award was a final determination. Refusing to accept our clear holding in 2006 that our remittiturs were final adjudications of the amount owed for the third and fourth rewards, he repeatedly asserted, and continues to assert, that cost memoranda are required and that the Association's counsel has engaged in misconduct by failing to tell the trial court that there are no cost memoranda. In 2005, he successfully presented an argument to the trial court that the Association had waived its right to collect on the first three awards by citing, entirely out of context, a statement made by the Association concerning the amount it was seeking for the fourth award. His successful presentation of this factually unsupported and misleading argument gave rise to a procedural quagmire that had to be resolved in lengthy proceedings before the trial court and on appeal. Ultimately, in 2009, we confirmed the Association was entitled to pursue enforcement of the four awards.
Undeterred, Chaudry again filed motions to strike the interest declarations and recall the writs of execution secured by the Association on remand in 2009, and he then filed the instant appeal. As stated, his current arguments on appeal reflect a dilatory purpose and/or are entirely without merit. Chaudry's latest filing convinces us that he is repeatedly filing appeals to postpone enforcement of the final judgments against him.
Chaudry's dilatory motive is further reflected in his repeated motions for discovery, for a stay, and for disqualification of justices filed during the current appeal. He requested that we permit him to obtain discovery of records and to call witnesses concerning matters related to the Association's attorney fees, arguing that a fraud had been committed upon the court. Because the attorney fee awards are final judgments that may not be set aside based on intrinsic fraud, and because there was no indication of extrinsic fraud suggesting Chaudry did not have his day in court (8 Witkin, Cal. Procedure, supra, Attack on Judgment in Trial Court, § 241, pp. 857-858), we denied these requests.
Chaudry's tactics show he is misusing the court's processes to try to avoid paying the final judgments entered against him. Both the Association and the courts have had to spend countless hours reviewing and responding to Chaudry's voluminous postjudgment filings which, as described by the trial court, are "transparently frivolous... designed solely to delay levy and force [the Association] to spend more money and time in its rightful collection of its attorneys fees."
We conclude Chaudry is a vexatious litigant on appeal in this litigation with the Association and that he should be subjected to a prefiling order. We confine our prefiling order to appeals or appellate writs presented by Chaudry for filing in this litigation between the Association and Chaudry, to take effect after the issuance of the remittitur for this appeal.
Section 391.7, subdivision (a) permits a prefiling order prohibiting a vexatious litigant "from filing any new litigation in the courts of this state" without leave of the presiding justice. Because Chaudry is a defendant in this litigation, an order broadly extending to all of our state courts is not appropriate. We restrict the prefiling order to appeals and appellate writs in this litigation with the Association.
The Association has also requested that we require Chaudry to post security during the pending litigation. (§ 391.1.) Because Chaudry will be subject to a prefiling order upon the issuance of our remittitur, we conclude this is not necessary.
Section 391.1 states that during pending litigation a defendant may move for an order requiring the plaintiff to furnish security. Given our holding, we need not evaluate whether a respondent on appeal may properly be characterized as a "defendant" for purposes of making a request for security under section 391.1. (See McColm v. Westwood Park Assn., supra, 62 Cal.App.4th at p. 1217.)
DISPOSITION
The trial court's orders are affirmed. We declare Chaudry a vexatious litigant on appeal in this litigation with the Association. After issuance of the remittitur in this case, Chaudry must obtain permission from the presiding justice of this court before filing any appeals or writs in propria persona with this court related to this litigation between the Association and Chaudry. The clerk of this court is directed to provide a copy of this opinion and order to the Judicial Council. (§ 391.7, subd. (e).) Copies shall also be mailed to the presiding judge and clerk of the San Diego County Superior Court.
Chaudry is ordered to pay the Association's costs on appeal. He is also ordered to pay $7,500 to the Association as sanctions for a frivolous appeal.
WE CONCUR: HUFFMAN, Acting P.J., IRION, J.
We initially provided Chaudry 15 days to respond to the vexatious litigant motion, and at his request granted two additional one-month extensions. We denied his request for a third extension of time, noting that we had already given him 77 days to respond. When he failed to file a timely response, we denied his request for relief from default (which still did not include an opposition), but informed him that our denial was without prejudice to his right to submit an opposition with a request for relief from late filing. He never submitted an opposition other than the arguments in his reply brief.
We gave Chaudry an opportunity to appear at a hearing on the vexatious litigant motion in conjunction with oral argument on the appeal and sanctions request. (See Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 225.) Chaudry was notified of the oral argument date and time (March 16, 2011, at 9:00 a.m.), but failed to appear. The matter was submitted. Later that same day, Chaudry contacted the court and requested that we vacate our submission and stay the matter. We vacated our submission and reset the matter for a hearing to be held on March 29, 2011, at 10:00 a.m. (Continued on next page.)
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The day before the continued hearing date, we received a request from Chaudry that the case be assigned to another appellate panel or court and that the matter again be continued or stayed. We denied these requests. Because he claimed he was unable to appear personally, we told him he could appear telephonically. At the time set for hearing, he called the court but claimed he could not hear us. The panel and court staff could clearly hear him. Satisfied by his responses that he could indeed hear us, we repeatedly requested that he present his argument. He failed to do so, and we submitted the matter.