Menis v. NDEx West CA5

Filed 5/30/14 Menis v. NDEx West CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

FIFTH APPELLATE DISTRICT

KENNETH MENIS et al.,
F065025
Plaintiffs and Respondents,
(Super. Ct. No. S-1500-CV-27517)
v.

NDEX WEST, LLC et al., OPINION
Defendants and Appellants.

APPEAL from a judgment of the Superior Court of Kern County. William D.
Palmer, Judge.
Barrett Daffin Frappier Treder & Weiss, Edward A. Treder and Darlene P.
Hernandez; Anglin Flewelling Rasmussen Campbell & Trytten, Robert Collings Little,
Robert A. Bailey, and Robin C. Campbell for Defendants and Appellants.
Law Offices of Michael D. Finley, Michael D. Finley for Plaintiffs and
Respondents.
National Housing Law Project, Kent Qian and Brittany McCormick; Housing and
Economic Rights Advocates, Elizabeth Letcher for California Homeowner Bill of Rights
Collaborative and Housing and Economic Rights Advocates as Amici Curiae on behalf of
Plaintiffs and Respondents.
 -ooOoo-
Defendants appeal from orders granting preliminary injunctions against them, but
failing to require plaintiffs to post a bond as required by statute. We conclude the orders
are invalid due to the lack of a bond requirement, and one is also invalid due to the failure
of the order to specify what conduct is enjoined. Accordingly, we reverse.
FACTS AND PROCEDURAL HISTORY
Plaintiffs sued defendants, NDEx West, LLC, Wells Fargo Bank, Wachovia
Mortgage, a division of Wells Fargo Bank, and four individuals, alleging 10 causes of
action arising out of defendants’ attempt to conduct a nonjudicial foreclosure sale of
plaintiffs’ residence. The same day they filed their complaint, plaintiffs presented an ex
parte application for a temporary restraining order (TRO) and an order to show cause
(OSC) re preliminary injunction against NDEx West only, seeking to enjoin it from
conducting the trustee’s sale. The trial court granted the TRO, restraining NDEx West
from proceeding with the trustee’s sale of plaintiffs’ property, pending further hearing,
and setting the matter for an OSC hearing. Wells Fargo1 filed a response opposing
issuance of a preliminary injunction; NDEx did not file any opposition.
The matter was heard on March 2, 2012, with plaintiffs and Wells Fargo appearing
at the hearing. On that date, the trial court entered a minute order granting the request for
a preliminary injunction against NDEx West and enjoining it from proceeding with the
foreclosure sale. The minute order did not mention a bond or undertaking. The trial
court took the matter under submission as to the remaining defendants. On March 5,
2012, the trial court issued a minute order granting a preliminary injunction as to all
remaining parties. The order stated: “No bond is necessary; the property is sufficient
security.” (Capitalization omitted.) On March 8, 2012, the trial court entered a formal
order, signed by the judge, enjoining NDEx West from proceeding with the trustee’s sale
1References to Wells Fargo in this opinion include Wachovia Mortgage.

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of plaintiffs’ property, which was then set for March 12, 2012. The formal order did not
mention Wells Fargo or the individual defendants; it did not require plaintiffs to post a
bond or undertaking.2
Wells Fargo and NDEx West appeal from the three orders granting plaintiffs’
request for a preliminary injunction. They contend the order against Wells Fargo is void
because it fails to describe what activities are enjoined, all three orders are void because
they failed to require a bond or undertaking as mandated by statute, and, even if the trial
court had discretion to issue a preliminary injunction without a bond or undertaking, it
abused its discretion by doing so because there was no evidence in the record to support a
finding that the real property in issue was sufficient security to dispense with a bond.
Plaintiffs contend NDEx West waived its objections to the preliminary injunction
by failing to file opposition to plaintiffs’ request, both NDEx West and Wells Fargo
waived any objection to the lack of a bond or undertaking by failing to file a motion to
object to the amount of the bond pursuant to Code of Civil Procedure § 995.930,
defendants failed to demonstrate the amount of bond or undertaking needed to protect
them, and the trial court may have declined to require a bond or undertaking because it
properly determined plaintiffs were indigent. The amici curiae brief in support of
plaintiffs’ position argues the trial court properly denied a bond because defendants failed
to demonstrate they would be harmed by the preliminary injunction, their security interest
in the property was sufficient to protect them from harm, and the trial court had inherent
discretion to waive the bond requirement.3

2Allfurther references to the term “bond” include both bonds and undertakings.
(See § 995.140, subd. (a)(2).)
3Wepermitted the California Homeowner Bill of Rights Collaborative and the
Housing and Economic Rights Advocates to file an amici curiae brief.

3.
 DISCUSSION
I. Standard of review
Generally, the trial court’s decision to issue a preliminary injunction is reviewed
for abuse of discretion. (In re Pham (2011) 195 Cal.App.4th 681, 685.) Questions
underlying the preliminary injunction, however, are reviewed under the standard
appropriate to the particular question. (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th
1090, 1136.) Findings of fact are reviewed for substantial evidence; the interpretation
and application of statutory or constitutional law are reviewed de novo. (Ibid.; Pham,
supra, at p. 685.)
II. Failure to specify what conduct is enjoined
The only order entered against Wells Fargo was the March 5, 2012, minute order,
which states: “The court finds as follows: [¶] Preliminary injunction is granted as to all
remaining parties. No bond is necessary; the property is sufficient security.”
(Capitalization omitted.) The order does not describe any conduct of Wells Fargo or the
other remaining defendants that is enjoined.
“The party bound by an injunction must be able to determine from its terms what
he may and may not do .…” (Brunton v. Superior Court (1942) 20 Cal.2d 202, 205.) “A
directive ‘in terms so vague that men of common intelligence must necessarily guess at
its meaning and differ as to its application, violates the first essential of due process of
law.’ [Citation.]” (In re Berry (1968) 68 Cal.2d 137, 156 (Berry).) “An injunction must
be definite enough to provide a standard of conduct for those whose activities are
proscribed, as well as a standard for the ascertainment of violations of the injunctive
order by the courts called upon to apply it.” (Pitchess v. Superior Court (1969) 2
Cal.App.3d 644, 651 (Pitchess).) “[I]n determining whether a defendant has been given
sufficient notice of the conduct proscribed, the language of the injunction must be
interpreted in light of the record which discloses the kind of conduct that was sought to

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be enjoined.” (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 534 (Continental
Baking).)
Continental Baking involved a dispute over the scope of an easement for ingress
and egress over the defendant’s property. (Continental Baking, supra, 68 Cal.2d at
pp. 518-520.) The plaintiff contended it was permitted to use the easement to reach its
loading area and the defendant contended the easement only permitted entry to another
area. (Id. at p. 517.) A preliminary injunction was entered, restraining the defendant
from erecting any structure on, obstructing, or interfering with the plaintiff’s use of the
easement. (Id. at pp. 533-534.) The defendant appealed.
The defendant contended the preliminary injunction was void for uncertainty and
overbreadth. The deed that granted the easement specifically gave the defendant the right
to build a structure over the easement, supported on posts and walls, and the injunction
seemed to conflict with that right. Construing the injunction in light of the record, the
court concluded: “The order of the trial court in this case was clearly intended to
preserve the status quo pending a trial on the merits. In the light of the record we must
conclude that [the defendant] has been given proper notice as to what conduct has been
enjoined; he must not obstruct ingress and egress from the driveway to [the defendant’s]
concrete loading area. When viewed in this light the injunction is neither uncertain nor
overbroad.” (Continental Baking, supra, 68 Cal.2d at p. 534.)
In Continental Baking, the court interpreted the language of the order defining the
prohibited conduct in light of other documents in the record indicating what relief was
requested. Here, in contrast, the March 5, 2012, minute order contained no language at
all defining the proscribed conduct, so there was no ambiguous language to interpret in
light of plaintiffs’ request for relief. Further, the OSC did not request an injunction
against Wells Fargo, so there is nothing in the request to provide guidance regarding what
conduct of Wells Fargo the trial court intended to restrain.

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 Plaintiffs contend the March 5, 2012, order merely extended the March 2, 2012,
order to the other defendants, “so that there is perfect clarity as to the specific activity
that is enjoined, stayed, or prohibited.” The March 5 order, however, made no reference
to the March 2 order; it named the defendants other than NDEx West and stated that the
“[p]reliminary injunction is granted as to all remaining parties.” (Capitalization omitted.)
The conduct of Wells Fargo and the other defendants that is restrained is not described in
the order or in any application for a preliminary injunction. The nature of the conduct
enjoined is not clear enough to permit enforcement.
“An injunction which forbids an act in terms so vague that men of common
intelligence must necessarily guess at its meaning and differ as to its application exceeds
the power of the court.” (Pitchess, supra, 2 Cal.App.3d at p. 651.) An order made in
excess of jurisdiction is void and cannot be enforced by contempt. (Berry, supra, 68
Cal.2d at pp. 148-149; accord, People v. Gonzalez (1996) 12 Cal.4th 804, 816-819.)
Because the order directed to “all remaining parties” (capitalization omitted), including
Wells Fargo, does not specify what conduct they are enjoined from engaging in, the order
is in excess of the court’s jurisdiction, void, and unenforceable.
III. Waiver of objections to preliminary injunction
Plaintiffs assert that NDEx West waived any objection to the preliminary
injunction by failing to file opposition or appear at the OSC hearing to oppose plaintiff’s
request. They further assert that Wells Fargo is an “interloper,” who had no right to
appear in this proceeding because plaintiffs’ request for a preliminary injunction was not
directed to it. They cite no authority and present no legal discussion in support of these
arguments. When a party fails to cite authority or fails to present legally supported
analysis for its argument, we may treat the issue as waived or meritless and need not
consider it further. (Estate of Cairns (2010) 188 Cal.App.4th 937, 949; In re Marriage of
Falcone & Fyke (2012) 203 Cal.App.4th 964, 1004.)

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 Plaintiffs sought to enjoin only NDEx West, the trustee or agent conducting the
nonjudicial foreclosure sale, and not Wells Fargo, the defendant that is or claims to be the
beneficiary of the deed of trust at whose instance and request the sale was initiated.
Wells Fargo, the party claiming the direct financial interest in conducting the sale,
opposed the motion and requested a bond of $50,000. The court enjoined both parties,
but instead of entering one order enjoining them both and setting one bond to protect both
defendants against any potential damage, it entered separate orders, neither of which
required a bond, despite Wells Fargo’s request. Plaintiffs fail to address application of
the waiver doctrine in this complicated factual situation. Accordingly, we decline to
consider plaintiffs’ cursory argument, which is unsupported by citation of authority or
meaningful discussion of the factual situation in which the question arises.
IV. Failure to require a bond
“On granting an injunction, the court or judge must require an undertaking on the
part of the applicant to the effect that the applicant will pay to the party enjoined any
damages, not exceeding an amount to be specified, the party may sustain by reason of the
injunction, if the court finally decides that the applicant was not entitled to the
injunction.” (Code Civ. Proc., § 529.4) Although section 529 and section 995.240
contain some exceptions to the bond requirement,5 if none of the exceptions applies, a
bond is mandatory, not discretionary. (Mangini v. J.G. Durand International (1994) 31
Cal.App.4th 214, 217; ABBA Rubber Co. v. Seaquist (1991) 235 Cal.App.3d 1, 10

4All further statutory references are to the Code of Civil Procedure unless
otherwise indicated.
5The court has discretion to issue a preliminary injunction without a bond when
the applicant is a spouse in a separation or dissolution proceeding; is an applicant under
the Domestic Violence Prevention Act (Fam. Code, § 6200 et seq.); is a public entity or
officer described in section 995.220; or is an applicant who is indigent. (§§ 529,
subd. (b), 995.240.)

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(ABBA).) Where an exception does not apply, a preliminary injunction issued without a
bond is a nullity. (Mangini, supra, at p. 217.) No evidence was presented to show that
any of the exceptions applied, and the trial court’s orders do not indicate it found any of
the statutory exceptions to the bond requirement applicable in this case.6 Consequently,
the preliminary injunctions are invalid because they failed to require the posting of a
bond.7
A. Amount of bond
Plaintiffs and amici curiae argue the absence of a requirement of a bond was
justified by defendants’ failure to present evidence of any potential damages they might
incur as a result of the preliminary injunction. In imposing the bond requirement, “the
trial court’s function is to estimate the harmful effect which the injunction is likely to
have on the restrained party, and to set the undertaking at that sum.” (ABBA, supra, 235
Cal.App.3d at p. 14.) “[T]he first step is to identify the types of damages which the law
allows a restrained party to recover in the event that the issuance of the injunction is
determined to have been unjustified. The sole limit imposed by the statute is that the
harm must have been proximately caused by the wrongfully issued injunction. [Citation.]
Case law adds only the limitation that the damages be reasonably foreseeable.
[Citations.]” (Ibid.)
Recoverable damages include reasonable attorney fees incurred in successfully
procuring a final decision dissolving the injunction. (ABBA, supra, 235 Cal.App.3d at
p. 15.) “Thus, ‘a successful appeal from an order granting an injunction, after notice and
hearing, gives rise to liability on the bond for damages’ in the amount of the attorney’s

6Weaddress plaintiffs’ argument that the trial court “may” have waived the bond
due to indigence in section IV.C., below.
7Plaintiffs,
however, are not precluded on this ground from making another
application for a preliminary injunction. (Miller v. Santa Margarita Land & Cattle Co.
(1963) 217 Cal.App.2d 764, 766.)

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fees incurred in prosecuting that appeal. [Citation.] If the preliminary injunction is valid
and regular on its face, requiring the defendant to defend against the main action in order
to demonstrate that the injunction was wrongfully issued, the prevailing defendant may
recover that portion of his attorney’s fees attributable to defending against those causes of
action on which the issuance of the preliminary injunction had been based. [Citation.]”
(Id. at p. 16.) Further, “where a sale under a deed of trust wrongfully is enjoined
compensation for the delay caused by the injunction may include an award to the
beneficiary of interest on the amount which would have been received from the enjoined
sale, provided the amount of the award, taking into consideration the amount received
from the subsequent sale, may not exceed the actual loss sustained.” (Surety Sav. & Loan
Assn. v. National Automobile & Cas. Ins. Co. (1970) 8 Cal.App.3d 752, 759.)
Wells Fargo requested a $50,000 bond to cover its losses incurred as a result of the
preliminary injunction. One of the items of damages claimed was attorney fees required
to bring this case to trial and defeat plaintiffs’ claims to an injunction against the sale of
their property. In other contexts, courts have recognized the ability of the trial court to
determine the value of attorney services even in the absence of expert testimony. “‘The
value of legal services performed in a case is a matter in which the trial court has its own
expertise. [Citation.] The trial court may make its own determination of the value of the
services contrary to, or without the necessity for, expert testimony. [Citations.]’”
(PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1096.) The same is true in the
context of awarding attorney fees as damages for an improperly imposed preliminary
injunction. “It is now well settled that reasonable counsel fees and expenses incurred in
successfully procuring a final decision dissolving the injunction are recoverable as
‘damages’ within the meaning of the language of the undertaking, to the extent that those
fees are for services that relate to such dissolution [citations]. The fixing of a reasonable
fee rests in the discretion of the trial judge and an appellate court will not disturb the
ruling unless ‘“the sum allowed is so exorbitant that its allowance constitutes a palpable

9.
and plain abuse of discretion.”’ [Citations.]” (Russell v. United Pacific Ins. Co. (1963)
214 Cal.App.2d 78, 88-89.) Where attorney fees are claimed as potential damages, we
believe trial courts have the ability and obligation to estimate the amount of attorney fees
the restrained party is likely to incur in prevailing at trial on the causes of action on which
the preliminary injunction was based, in order to set the amount of the bond that is
required in conjunction with issuance of the preliminary injunction. An estimate
proffered by the attorney for the restrained party may assist the court, but the
determination is within the court’s discretion. Counsel for Wells Fargo did not
specifically estimate its potential attorney fees, but requested a $50,000 bond to cover
those fees and other potential damages. The trial court knew the nature and status of the
case. It knew the case was in its early stages. It was aware of the claims being made by
plaintiffs and the issues being raised by both parties, as set out in the complaint, the
application for a preliminary injunction, and Wells Fargo’s opposition to the application.
There was no contention Wells Fargo would not incur any attorney fees resulting from
the preliminary injunction, in the event the court later determined plaintiffs were not
entitled to injunctive relief. Consequently, lack of evidence of potential damages was not
a valid basis for denying a bond, at least as to potential attorney fees incurred in obtaining
a final decision dissolving the injunction.
B. Sufficiency of security
The March 2 and March 8 orders enjoining NDEx West from conducting a
trustee’s sale of plaintiffs’ real property do not mention a bond. In the March 5 order
enjoining the remaining defendants, the trial court found no bond was necessary because
“the property is sufficient security.” (Capitalization omitted.)
Plaintiffs did not argue in their application for a preliminary injunction that a bond
was not required because Wells Fargo’s security interest sufficiently protected defendants
against a wrongly imposed preliminary injunction. On the contrary, plaintiffs’ complaint
is based on allegations that Wells Fargo was not the holder of their promissory note, did

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not have a perfected security interest in it, was not the correct party to enforce the note
and deed of trust, and had no legal interest in the property. In their application for
preliminary injunction, in a section discussing irreparable injury and the balance of harms
to the parties, plaintiffs stated: “There is no cost or prejudice to Defendant for this
preliminary injunction to issue, as the Trustee has no stake in the proceeding, and the
Defendants Wachovia and Wells Fargo Bank are only servicing agents, whereas the real
investor may be nowhere to be found.” (Capitalization omitted.) Plaintiffs did
acknowledge, however, that “[i]f the defendants’ interest in the property holds up to
scrutiny in court, the defendants will still have the opportunity to foreclose after
determination of these crucial statutory issues.”
We have not been cited to any California authority allowing the trial court to
decline to order a bond when it issues a preliminary injunction enjoining a trustee’s sale
of real property held as security for a debt, simply because there is security for the debt.
This is not one of the statutory exceptions to the bond requirement. (See § 529.) The
bond requirement protects the restrained party against damages that result from the
preliminary injunction. Such damages may or may not be recoverable as part of the
secured debt.
Wells Fargo requested a $50,000 bond to cover its losses incurred as a result of the
preliminary injunction. It claimed as potential losses its attorney fees and costs in
defending the action through trial to obtain dissolution of the preliminary injunction, lost
payments on plaintiffs’ debt during pendency of the action, and any drop in the value of
the property due to the delay in sale. At the OSC hearing, counsel for plaintiffs
speculated that, if the sale of the property was postponed and plaintiffs ultimately lost at
trial, defendants could still foreclose and the property “might even be more valuable on
the date of the foreclosure sale than it is today.” The trial court agreed, stating “I’m well
aware of that market. The reality is that we’re probably at a low, waiting would probably
be to the benefit of the bank even if they prevail. I agree. I understand that.”

11.
 The court did not have before it any evidence of the then-current value of the
property. It had before it the deed of trust, which indicated the original loan amount was
$300,000. It had the notice of trustee’s sale, which reflected an unpaid balance on the
obligation of $358,017.60 as of May 5, 2011, 10 months before the hearing of the
application for preliminary injunction. There was no evidence, by expert opinion or
otherwise, that the property was likely to increase in value over any particular period of
time in the future, and no indication that the future value would be sufficient to secure
both the obligation under the promissory note secured by the deed of trust and the
damages Wells Fargo was likely to incur as a result of the preliminary injunction, if it
was later determined plaintiffs were not entitled to a preliminary injunction.
If the damages arising out of imposition of a preliminary injunction to which
plaintiffs were not entitled were to be added to the obligation secured by the deed of trust,
then there would be security for those damages only to the extent the value of the
property at the time of the trustee’s sale exceeded the obligation otherwise owing. As of
May 5, 2011, the total unpaid balance of the obligation secured by the deed of trust was
$358,017.60. Thus, the value of the property at the time of sale would have to exceed
that amount, plus any interest or other charges accruing in the meantime, in order for the
security to even begin to protect Wells Fargo against damages caused by imposition of a
preliminary injunction to which plaintiffs are not entitled.
The deed of trust, however, provides: “The maximum aggregate principal balance
secured by this deed of trust is $375,000 .…” (Capitalization omitted.) Thus, the
security available to protect Wells Fargo against those damages is limited to the
difference between $375,000 and the obligation otherwise owing, assuming the value of
the property at the time of the trustee’s sale is at least $375,000. Consequently, any
increase in the value of the property due to a favorable market is relevant only up to a
value of $375,000, and the security available to protect against Wells Fargo’s damages
from a wrongly entered preliminary injunction will decrease over time as the obligation

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under the deed of trust increases due to accruing interest and other charges, even as Wells
Fargo’s damages in the form of attorney fees for this litigation increase.
Therefore, even if the trial court were authorized to substitute the beneficiary’s
security interest in the real property under the deed of trust for a bond protecting the
beneficiary against damages incurred due to a wrongly issued preliminary injunction
enjoining the trustee’s sale, or to decline to impose a bond requirement because the
restrained parties are unlikely to sustain damage due to their existing security interest in
the property, substantial evidence does not support the trial court’s determination that
“the property is sufficient security” (capitalization omitted) to protect defendants’
interests.8 There was no evidence before the court that the anticipated value of the
property at some future time when the preliminary injunction is dissolved would be
sufficient to secure both Wells Fargo’s damages resulting from the preliminary injunction
and the debt otherwise owing and secured by the deed of trust. The trial court was
required to order posting of a bond and, in the absence of an order requiring a bond, the
preliminary injunctions were invalid and unenforceable.
C. Mabry v. Superior Court
Plaintiffs argue that their application for a preliminary injunction also contained a
request for a postponement of the trustee’s sale pursuant to Civil Code section 2923.5 and
Mabry v. Superior Court (2010) 185 Cal.App.4th 208, which does not require posting of
a bond. Civil Code section 2923.5 requires that, before a notice of default may be
recorded, the mortgage servicer, trustee, beneficiary, or authorized agent must contact the
borrower “to assess the borrower’s financial situation and explore options for the
borrower to avoid foreclosure.” (Id., subd. (a).) The notice of default must include a
declaration that the mortgage servicer complied with this requirement or, despite due

8We note there is no claim that NDEx West held any security interest in plaintiffs’
property that would protect it against an improvidently granted preliminary injunction.

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diligence, was unable to contact the borrower. (Id., subds. (b), (e).) The only remedy for
a failure to comply with this requirement is a postponement of the sale pursuant to Civil
Code section 2924g to permit the lender to comply. (Mabry, supra, at pp. 214, 225-226.)
Plaintiffs’ application asked for a TRO “pending a determination of whether a
postponement under Civil Code § 2924g or a Preliminary Injunction should issue
pursuant to the OSC.” It discussed the Mabry case and the requirements of Civil Code
section 2923.5. It also cited sections 526 and 527 regarding preliminary injunctions, and
argued at length that the requirements for issuance of a preliminary injunction—
irreparable injury, balance of the harms, and likelihood of success on the merits—were
met. The trial court did not grant a postponement of the sale pursuant to Mabry. The
March 2 order states: “Preliminary injunction to issue as to NDEx.” (Capitalization
omitted.) The March 5 order states: “Preliminary injunction is granted as to all
remaining parties.” (Capitalization omitted.) The March 8 formal order restrains NDEx
West from proceeding with the trustee’s sale “[u]ntil this action is concluded by trial or
other permanent disposition .…” The court did not merely postpone the sale until
defendants could comply with the contact requirements of Civil Code section 2923.5.
Preliminary injunctions were granted and a bond was required.
D. Indigence
Section 995.240 provides that the court may waive the provision for a bond if it
determines the party who would be required to post it is indigent. Plaintiffs speculate that
the trial court may have waived the bond on this ground, based on papers filed by Wells
Fargo indicating plaintiffs had at one time filed a bankruptcy proceeding. Plaintiffs did
not request a waiver of the bond due to indigence. Plaintiffs have not cited this court to
any portion of the record containing any evidence of bankruptcy or indigence. 9 The
9“Each and every statement in a brief regarding matters that are in the record on
appeal, whether factual or procedural, must be supported by a citation to the record.”
(Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 96-97, fn. 2.)

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court’s orders do not indicate it waived the bond requirement due to plaintiffs’ indigence.
Plaintiffs’ argument is without merit.
E. Section 995.930
Plaintiffs contend defendants waived any objection to the lack of a bond by failing
to file an objection pursuant to section 995.930. Section 995.920 permits the beneficiary
of a bond to object to the bond if the sureties are insufficient, the amount of the bond is
insufficient, or the bond is insufficient from any other cause. Section 995.930 provides
that such an objection shall be made by noticed motion, specifying the precise grounds
for the objection. (§ 995.930, subd. (a).) The objection “shall be made within 10 days
after service of a copy of the bond on the beneficiary,” and, if no objection is made
within that time, the beneficiary is deemed to have waived its objections. (§ 995.930,
subds. (b), (c).)
By their terms, these sections pertain to an objection to the amount of a bond,
which must be made within 10 days after service on the beneficiary of a copy of the
bond. They do not apply to an order for a preliminary injunction which entirely fails to
address the bond requirement or orders that no bond is necessary. Defendants’ objection
is not to the insufficiency of the amount of the bond posted; their objection is to the
absence of any requirement that a bond be posted at all. Defendants did not waive this
objection by failing to file a noticed motion pursuant to section 995.930.
V. Issues raised by amici curiae brief
“California courts refuse to consider arguments raised by amicus curiae when
those arguments are not presented in the trial court, and are not urged by the parties on
appeal. ‘“Amicus curiae must accept the issues made and propositions urged by the
appealing parties, and any additional questions presented in a brief filed by an amicus
curiae will not be considered [citations].”’ [Citations.]” (California Assn. for Safety
Education v. Brown (1994) 30 Cal.App.4th 1264, 1275.) The arguments by amici curiae
not addressed in this opinion, including arguments concerning the effect of the anti-

15.
deficiency statutes and whether the trial court has inherent discretion to waive the bond
requirement, were not raised by the parties in the trial court or in this appeal.
Consequently, we decline to consider those arguments.
DISPOSITION
The orders granting the preliminary injunctions are reversed. Defendants and
Appellants shall recover their costs on appeal.

_____________________
Sarkisian, J.*

WE CONCUR:

_____________________
Poochigian, Acting P.J.

_____________________
Peña, J.

*Judge of the Superior Court of Fresno County, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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