Filed 8/29/13 Narog v. Claybaugh CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

CORY NAROG, Plaintiff and Appellant,

v. ALLEN CLAYBAUGH, Defendant and Respondent. A131782

(San Mateo County Super. Ct. No. CIV498746)

Plaintiff Cory Narog filed a petition fo r a restraining orde r against alleged harassment by his neighbor, defendant Allen Claybaugh. Claybaugh responded with a motion to declare Narog a vexatious litigant and require him to post security before pursuing his petition. At the he aring on the motion, the trial court found Narog to satisfy the statutory requirements for a vexatious litigant and provided him the opportunity to demonstrate he was likely to prevail on his petition for a rest raining order. After taking testimony from Narog regarding the nature of his claims of harassment, the trial court granted Claybaugh’s motion, finding Narog not credible a nd unlikely to prevail on his claims. When Narog failed to post the requi red security, the trial court dismissed his petition and entered an award of stat utory attorney fees. We affirm.

I. BACKGROUND On September 10, 2010, Narog filed a pe tition for a temporary re straining order to prevent harassment of himself and other memb ers of his household by Claybaugh. The motion alleged Claybaugh had screamed threats at Narog, shined floodlights on a nightly basis into Narog’s home, played basketball at 6:45 a.m. to wake Narog, and kept Narog2 under surveillance. As a resu lt of these acts, Narog claimed, he was in “fear for my life and safety.” Prior to hearing on the motion, Claybau gh filed a motion for entry of an order declaring Narog to be a vexatious litigant a nd requiring him to obtain leave of court before filing future litigation. The motion wa s supported by evidence Narog had filed a large number of lawsuits in San Mateo County Superior Court and other jurisdictions and had been found, barely a year earlier, to be a vexatious litigant by the Santa Clara County Superior Court. Claybaugh also attached court documents demonstrating Narog had represented himself in pro. per. in five sp ecific unsuccessful lawsuits during the prior seven years, captioned Narog v. Ballack (Super. Ct. San Mateo County, No. CIV442068); Narog v. Barajas (Super. Ct. San Mateo Co unty, No. CIV442860) ( Barajas ); Narog v.

Anderson Chevrolet (Super. Ct. San Mateo County, No. CLJ447781); Narog v. City of Redwood City Police Department (Super. Ct. San Mateo Co unty, No. CIV448428); and Narog v. Fung (Super. Ct. San Mateo County, No. CIV493181) ( Fung ). All but Fung had been used to support th e motion for vexatious litigant st atus in Santa Clara County. At hearing on the motion, the trial cour t first found Narog to be a vexatious litigant. In making this determination, the tr ial court applied the doctrine of collateral estoppel to adopt the findings of the Santa Cl ara County Superior Court with respect to the four actions listed above. As to the fifth, Fung, the trial court relied on the evidence

submitted in connection with Claybaugh’s motion. The trial court then permitted Narog to present evidence on th e likelihood of his prevailing on his petition for a restraining order. Narog te stified, describing verbal threats and abuse by Claybaugh, suspicious ac tions, such as staring and photography, and other acts of harassment, such as early mo rning ball-playing and light-shining. In connection with his oppositio n to the restraining orde r, Claybaugh ha d submitted a3 declaration to the court presenting a very diffe rent account of events, stating he had met Narog face-to-face only once and deny ing any intentional harassment. 1 At the conclusion of the hearing, the tr ial court concluded Na rog was not likely to prevail on his claims. The court rejected Narog’s testimony of actual threats as not credible and found his percepti on of other events to be exag gerated. The court concluded Claybaugh’s basketball- playing did not constitute harassmen t, saw nothing unusual in the Claybaugh home security lighting, which was located “across two streets and across a body of water, with trees in the direct view ” from Narog’s house, and found the parties’ photography as “mutual” and done in “self-d efense,” rather than with the intent of harassment. The court according ly required Narog to post s ecurity of $25,000 prior to moving forward with the petition for a restra ining order. After Narog failed to post the required security in a timely manner, th e trial court dismis sed his petition under

section 391.4. Claybaugh then filed a motion for a ttorney fees and costs pursuant to section 527.6, supported by evidence of the fees and cost s incurred. The trial court granted the motion for attorney fees and costs to the extent the costs were incurred in defense of the petition for a restraining or der. The court disallowed fees and costs incurred solely in connection with the motion to declare Na rog a vexatious litigant, but it recognized the tasks we re, to some degree, inextricably intertwined. The court also awarded attorney fees and cost s associated with the filing of the attorney fees motion itself, ultimately entering judgment for Cl aybaugh in the amount of $23,405.04.

II. DISCUSSION Narog argues (1) the eviden ce was insufficient as a matt er of law to support the trial court’s declaration of vexatious litigant st atus, (2) the trial court abused its discretion in finding him unlikely to preva il on the merits of his petition, and (3) the trial court erred in awarding attorney fees.

1 Code of Civil Procedure section 391.2 expressly authorized the trial court to consider evidence by declaration in eval uating Narog’s likelihood of success. Further statutory references are to the Code of Civil Procedure.4 A. Vexatious Litigant Rulings “The vexatious litigant statutes (§§ 391–391 .7) are designed to curb misuse of the court system by those persiste nt and obsessive litigants wh o, repeatedly litigating the same issues through groundle ss actions, waste the time and resources of the court system and other litigants.” ( Shalant v. Girardi (2011) 51 Cal.4th 1164, 1169.) “The vexatious litigant statutes . . . provide two distinct and cumulative remedies against vexatious litigants . . . . [Citation.] The first of these re medies is an order to furnish security, as

described in section 391.3. A defendant obtains this remedy . . . by bringing a motion under section 391.1, wh ich requires determinations that the plaintiff is a vexatious litigant and that there is no reasonable probability that he or she will prevail on the merits in the

action. If the court issues an order to furnis h security, the action is automatically stayed

from the time the motion was filed until 10 days after the plaintiff posts the required security. (§ 391.6.) If the plaintiff fails to post the security, the action ‘shall be

dismissed as to the defendant for whose benefit it was ordered furnished.’ ” ( Golin v. Allenby (2010) 190 Cal.App.4th 616, 633–634, fns. omitted .) “When considering a motion to declare a litigant ve xatious under secti on 391.1, the trial court performs an evaluative function. The court must weigh th e evidence to decide both whether the party is vexatious based on the statutory criteri a and whether he or she has a reasonable probability of prevailing. [Cita tion.] Accordingly, the court does not assume the truth of a litigant’s factual allegations and it may re ceive and weigh eviden ce before deciding whether the litigant has a reasona ble chance of prevailing.” ( Id. at p. 635.) In order to be declared a vexatious litigan t, the plaintiff must come within one of

the definitions in section 391, subdivision (b). ( Morton v. Wagner (2007) 156 Cal.App.4th 963, 969.) Here, the trial court found Narog to be a vexatious litigant under section 391, subdivision (b)(1), which applies if the pl aintiff “[i]n 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.” We review the trial5 court’s order declaring a party to be a ve xatious litigant for subs tantial evidence. ( Morton v. Wagner , at p. 969.) Narog contends the trial court erred in invoking the doctrine of collateral estoppel to find him a vexatious litigant under section 391, subdivision (b)(1) because one of the actions on which the Santa Clara County Superior Court relied, Barajas, did not satisfy the requirements of the subdivision. So long as Narog had a full and fair opportunity to litigate the validity of the disp uted issues in Santa Clara County, however, an error by that court did not preclude application of the doc trine of collateral estopp el in this action. The purpose of the doctrine is precisely to avoid relitigation of issues previously

decided. As the court held in Proctor v. Vishay Intertechnology, Inc. (2013) 213 Cal.App.4th 1258, “ ‘collateral est oppel may apply even where the issue was wrongly decided in the first action.’ [Cita tions.] ‘ “In passing upon the plea of res judicata , the question is not whether a court de cided the point invol ved right or wrong [ sic ] . . . the question is, Did the court decide the point and is the decision final?” ’ ” ( Id. at p. 1270.) Narog does not co ntend he was not permitted a full and fair opportunity to litigate in Santa Clara County. Accordingly, the trial court did not err in granting collateral estoppel effect to the Santa Clara County order. In any event, we find no support in the r ecord for his claims of error. First, he contends the Santa Clara County Superior C ourt erred in finding he represented himself

in Barajas. Narog’s opposition to the vexatious litig ant motion, howeve r, acknowledged that, while he had commenced the action thro ugh counsel, he “became pro per when his attorney withdrew for reasons unrelated to the merits of th e case.” Claybaugh’s evidence in support of his motion confirmed that, within “two or three months” of the filing of Barajas , Narog represented himself and maintain ed the lawsuit to its conclusion. Accordingly, the court’s finding that Narog represented himself in the Barajas action was supported by substantial evidence. Narog makes the same claim about another case, Fung, which was not involved in the Santa Clara County order. With respect to that case, the trial court took judicial notice of the court file, which contained an entry stating th at Narog had filed the petition6 commencing the suit on his own behalf. Again, the court’s finding that Narog represented himself in this action was supported by substantial evidence. Narog argues his representation by co unsel at times duri ng those litigations disqualified them from consid eration under section 391, su bdivision (b)(1), but a party need not have appeared in pr o. per. for the entirety of a lawsuit for the action to be covered by the statute. Rather, a lawsuit satis fies the statutory requirement if the plaintiff “commenced, prosecuted, or maintain ed” the litigation in pro. per. ( Ibid. ) When Narog took over representation in the Barajas case and pursued it to its conclusion, he both “prosecuted” and “maintained” the litigation in pro. per. Sim ilarly, when Narog filed the Fung petition, he “commenced” the litigation in pro. per. Even though Narog was represented by counsel at some point during both those actions, they both qualified for

consideration under subdivision (b)(1). At oral argument, Narog’s counsel c ontended the Santa Clara County Superior Court erred in finding Barajas was determined adversely to him. 2 In making the argument, counsel relied on a declaration in th e record stating Narog agreed to dismissal of two of the plaintiffs in th e case in return for their waiver of costs in February 2006.

While the adverse nature of such a dismissal could be debated, sinc e Narog as plaintiff recovered nothing, it is unnecessary for us to resolve the issue beca use another document

in the record demonstrates the entire action was dismissed in June 2006 for failure to

2 In his brief on appeal, Narog contended, without citation to evidence, that in Barajas he “prevailed in arbitration and received a settlement.” In his reply brief, Narog acknowledges that evidence of the claimed settlement is “[a]bsent from” the appellate record. We find no evidence in the record that Barajas was settled after an arbitration. On June 18, 2013, Narog submitted a pleadin g entitled, “Portions of Appellant’s Reply Brief,” which bound together two documents. We construed the pleading as a motion to augment and deferred decision. We now deny that motion. The letter included in the pleading is not a proper subject of judicial notice, while the judgment included is of no discernible relevance to this case, since it concerns a San Joaquin County lawsuit that was not among the lawsuits re lied on by the trial court.7 prosecute. 3 Again, although an e rror in the Santa Clara County Superior Court order would not preclude the invocatio n of collateral estoppel, there is no basis for finding such

an error. Narog argues Claybaugh fa iled to demonstrate Narog was unlikely to prevail on his petition for a restraining order but instead “won his motion by default” because Narog’s counsel was unable to “rebut any ev idence offered to the court.” We have

reviewed the record and find the trial cour t’s finding of an absence of likelihood of success to be supported by substantial evidence. Cla ybaugh’s declaration submitted in opposition to the restraining order, if believed, demonstr ated Narog’s petition to be

unsubstantiated. The trial court allowed Na rog a full opportunity to present evidence supporting his allegations and f ound his account of events to lack credibility. We have no basis for second-guessi ng that determination.

B. Attorney Fees Narog’s petition for a temporary restraini ng order was filed under the authority of section 527.6, which permits the entry of a temporary restraining order and injunction prohibiting harassment by one person of another. ( Id. , subd. (a).) Subdivision (r) of section 527.6 permits the trial court to awar d attorney fees and costs to the “prevailing party” in “any action” brought under section 527.6. Beca use subdivision (r) does not define “prevailing party,” we look to th e definition of “pre vailing party” under section 1032. ( Adler v. Vaicius (1993) 21 Cal.App.4th 1770, 1777.) Whether to award such fees under section 527.6, subdivision (r) lie s in the discretion of the trial court; no

3 Counsel claimed at oral argumen t that there were two separate Barajas cases, one involving personal injury and one involving property damage. The docket numbers for both the Barajas cases mentioned in the declaration and the dismissed case were the same: San Mateo County Superior Court No. CIV442860. Further, the order of dismissal characterized the dismissed case as involving “PI/PD –MOTOR VEHICLE.” Accordingly, we find no evid ence in the record to support counse l’s claim of two separate actions.8 showing of lack of merit or frivolousness is required. 4 ( Krug v. Maschmeier (2009) 172 Cal.App.4th 796, 802.) Narog contends the trial court erred in entering fees under section 527.6, subdivision (r) because the case “was not heard on its mer its.” Under section 1032, subdivision (a)(4), “prevailing part y” includes “a defendant in whose favor a dismissal is entered.” A full hearing on the merits is not required for a defendant to be declared a prevailing party. ( Adler v. Vaicius, supra, 21 Cal.App.4th at p. 1776.) Under the circumstances here, in which the trial court found no likelihood of Narog prevailing after an evidentiary hearing and u ltimately dismissed Narog’s petiti on pursuant to statute after he failed to post security, we find no abuse of the trial court’s discretion in its conclusion Claybaugh was entitled to fees. 5 Narog argues the trial court abused its discretion in granting Claybaugh reimbursement for attorney fees incurred in prosecuting his a ttorney fees motion. It is generally recognized that a tria l court has discretion to award fees of this type, which are commonly referred to as “ ‘fees on fees.’ ” ( Estate of Trynin (1989) 49 Cal.3d 868, 871; Pellegrino v. Robert Half Internat., Inc. (2010) 182 Cal. App.4th 278, 294.) Particularly given the circumstances of this case, in which Narog was found to have forced his neighbor to incur substantial litigation expens es on the basis of a baseless petition, we

find no abuse of discretion in the award of fees on fees. In arguing against the award of fe es on fees, Narog relies for support on Zurich Ins. Co. v. Killer Music, Inc. (9th Cir. 1993) 998 F.2d 674, which held that the prevailing

4 In his appellant’s opening br ief, Narog refers to an attorney fees provision in section 527.7, subdivision (c), which does require a showing of groundlessness or bad faith. That provision is irrelevant here, sin ce it applies only to actio ns brought to enjoin criminal activity under secti on 527.7, subdivision (b).

5 Narog argues for the first time in his re ply brief that the trial judge should have recused herself and failed to consider his pro. per. status in awarding attorney fees. These arguments were waived on ap peal when Narog did not raise them in his opening brief. ( California Retail Portfolio Fund GMBH & Co. KG v. Ho pkins Real Estate Group (2011) 193 Cal.App.4th 849, 862.) We deny as moot Claybaugh’s motion to strike the portions of Narog’s reply brief dea ling with these arguments.9 defendant in a declaratory relief action over insurance coverage was not entitled to an award of the attorney fees incu rred in defending the action. ( Id. at p. 680.) As is clear from that description, Zurich Ins. Co. arose in a different factual context. It does not mention the issue of fees on fees. In any even t, as federal authority, it would not preclude

the award of fees on fees authorized in such cases as Estate of Trynin.

III. DISPOSITION The judgment of the trial court is affirmed.

_ ____________ ____________ Margulies, Acting P.J.

We concur:

_____________ ____________ Dondero, J.

_____________ ____________ Banke, J.