Judge Barbara M. Scheper, Case Number: 24STCV13616, Date: 2024-10-04 Tentative Ruling

Judge: Barbara M. Scheper, Case: 24STCV13616, Date: 2024-10-04 Tentative Ruling

Case Number: 24STCV13616 Hearing Date: October 4, 2024 Dept: 30

Dept. 30

Calendar No.

Joel Sales and Service vs. Pixior, LLC et. al., Case No. 24STCV13616

Tentative Ruling re: Defendants’ Motion for Order Requiring an Undertaking

Pixior, LLC, Seko Worldwide LLC dba Sekologistics, Yassine Amallal and Simon Bouzaglou (Defendants) move for an order requiring Joel Sales and Service (Plaintiff) to post an undertaking of no less than $200,000. The motion is denied.

Where a plaintiff in an action resides out of the state, the defendant may, at any time, apply to the court for an order requiring the plaintiff to file an undertaking to secure costs and attorney’s fees which may be awarded in the action. (Code Civ. Proc., § 1030, subd. (a).) The motion shall be made on grounds that the plaintiff resides out of the state and there is a reasonable possibility that the moving defendant will obtain judgment in their favor. (Id., § 1030, subd. (b).) The motion shall be accompanied by an affidavit in support of the grounds for the motion and setting forth the nature and amount of costs and attorney’s fees the defendant has incurred and expects to incur. (Ibid.)

“The purpose of [Section 1030] is to enable a California resident sued by an out-of-state resident to secure costs in light of the difficulty of enforcing a judgment for costs against a person who is not within the court’s jurisdiction.” (Alshafie v. Lallande (2009) 171 Cal.App.4th 421, 428.) The moving party is not required to show there is no possibility that an out-of-state plaintiff will win at trial, but rather that it is reasonably possible that the moving party will win. (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1432.)

If the motion is granted, the plaintiff shall file the undertaking no later than 30 days after service of the court’s order. (Code Civ. Proc., § 1030, subd. (d).) If plaintiff fails to file the undertaking within the time allowed, the plaintiff’s action shall be dismissed as to the moving defendant. (Ibid.)

Defendants move for an order requiring Plaintiff to post an undertaking in the amount of $200,000, calculated as $50,000 for each Defendant. Plaintiff does not contest that it is a foreign corporation residing out of state. (Joel Decl. ¶ 1.) Thus, Defendants need only demonstrate a reasonable possibility that they will obtain judgment in their favor.

Defendants argue that they have a reasonable possibility of obtaining judgment in their favor because Plaintiff has failed to produce any evidence of a written or oral agreement in his action for breach of contract. Plaintiff argues that an oral agreement existed. (Id. ¶¶ 3–7.) Plaintiff offers documentary evidence in the form of text messages and email correspondence between Plaintiff and Defendants. These demonstrate some sort of communication between the parties which could evidence an earlier oral agreement. However, the evidence offered by Plaintiff does not demonstrate that Defendants have no reasonable possibility of obtaining judgment in their favor. Defendants still have defenses available, such as the statute of frauds, which give them a reasonable possibility of success.

However, Defendants utterly fail to substantiate the amount requested. As an initial matter, there does not appear to be any basis for Defendants to recover attorney’s fees. Undertakings may only be ordered for an award of “reasonable attorney’s fees a party may be authorized to recover by a statute apart from this section or by contract.” (Code Civ. Proc. § 1030, subd. (a).) Defendants do not allege any contractual provision that would be a basis for recovering attorney’s fees. Rather, Defendant’s argue that they could be entitled to attorney’s fees as sanctions imposed pursuant to Code of Civil Procedure section 128.7, subdivision (c). That is highly speculative.

As to any costs that might be recoverable, Defendants only vaguely argue that discovery, including depositions and experts, is likely to be expensive. This is insufficient.