Judge: Christopher K. Lui, Case: 22STCV22914, Date: 2025-06-11 Tentative Ruling
Case Number: 22STCV22914 Hearing Date: June 11, 2025 Dept: 76
Defendant/Cross-Complainants Castaic Studios, LLC’s motion to require Plaintiff to post an undertaking pursuant to Civ. Proc. Code, § 1030 is DENIED.
ANALYSIS
Motion To File An Undertaking Pursuant To Civ. Proc. Code, § 1030
Request For Judicial Notice
Defendant/Cross-Defendant requests that the Court take judicial notice of the following: (1) The Second Amended Complaint filed by Plaintiff; (2) California Secretary of State Registration of Out-of-State Limited Liability Company providing Plaintiff Wonderland Studios, LLC is a Limited Liability Company formed in the State of Delaware; (3) This Court’s Minute Order dated April 26, 2023.
Requests Nos. 1 and 3 are GRANTED per Evid. Code, § 452(d)(court records). Request No. 2 is GRANTED. The Court may take judicial notice of a business entity’s corporate status as reflected in the Secretary of State’s records. (Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1286; Pedus Bldg. Servs. v. Allen (2002) 96 Cal.App.4th 152, 156 n.2.)
In support of the Reply, Defendant requests that the Court take additional judicial notice as follows: (4) Resignation of Agent for Service of Process filed with the California Secretary of State, agent resigning 10/16/2023; (5) Property located at 2511 PERDIDO LANE LOS ANGELES, CA 90077 is not owned by Plaintiff nor Plaintiff’s member; (6) Ova Media Records letter, produced in evidence by Plaintiff.
Request No. 4 is GRANTED as a record of the Secretary of State. Requests Nos. 5 and 5 are DENIED as these matters constitute evidence, not matters subject to judicial notice.
Discussion
Defendant/Cross-Complainants Castaic Studios, LLC moves for an order for Plaintiff to post an undertaking in the amount of $10,000 pursuant to Civ. Proc. Code, § 1030. Defendant argues that Plaintiff is a foreign corporation.
In the Opposition, Plaintiff argues that Civ. Proc. Code, § 1030 does not apply to Plaintiff, which is an LLC, not a corporation. The Court agrees.
Per the Out-Of-State Limited Liability Company Registration filed on August 24, 2022 with the California Secretary of State—of which moving party Defendant has requested the Court take judicial notice—Plaintiff Wonderland Studios LLC is a Limited Liability Company formed in Delaware on February 1, 2019.
Civ. Proc. Code, § 1030 provides:
(a) When the plaintiff in an
action or special proceeding resides out of the state, or is a foreign
corporation, the defendant may at any time apply to the court by noticed
motion for an order requiring the plaintiff to file an undertaking to secure an
award of costs and attorney’s fees which may be awarded in the action or
special proceeding. For the purposes of this section, “attorney’s fees” means
reasonable attorney’s fees a party may be authorized to recover by a statute
apart from this section or by contract.
(b) The motion shall be made on
the grounds that the plaintiff resides out of the state or is a foreign
corporation and that there is a reasonable possibility that the moving
defendant will obtain judgment in the action or special proceeding. The motion
shall be accompanied by an affidavit in support of the grounds for the motion
and by a memorandum of points and authorities. The affidavit shall set forth
the nature and amount of the costs and attorney’s fees the defendant has
incurred and expects to incur by the conclusion of the action or special
proceeding.
(c) If the court, after hearing,
determines that the grounds for the motion have been established, the court
shall order that the plaintiff file the undertaking in an amount specified in
the court’s order as security for costs and attorney’s fees.
(d) The plaintiff shall file the
undertaking not later than 30 days after service of the court’s order requiring
it or within a greater time allowed by the court. If the plaintiff fails to
file the undertaking within the time allowed, the plaintiff’s action or special
proceeding shall be dismissed as to the defendant in whose favor the order
requiring the undertaking was made.
. . .
(g) An order granting or denying a motion for an undertaking under this section is not appealable.
(Civ. Proc. Code, § 1030(a) – (d), (g)[bold emphasis added].)
Although there is a dearth of case law interpreting § 1030, the language of § 1030 ha been construed strictly.
[S]ection 1030 unambiguously refers
only to a "plaintiff"; when the Legislature intends for a specific
statutory provision to apply to both a plaintiff and cross-complainant, it
expressly indicates that intent. . . . [*332] . . .
To begin, it is highly significant
that section 1030 refers only to an out-of-state plaintiff but makes
no similar reference to an out-of-state cross-complainant. This is in marked
contrast to many other statutes that reference both a plaintiff and a
cross-complainant. Such a dual reference clearly demonstrates a legislative
intent to have the specific statutory provision apply both to a plaintiff and a
cross-complainant. (Citations omitted.) Section 1030, on the other hand,
contains no similar reference to a cross-complainant.
In another group of statutes, there is
an express statement that a plaintiff includes a cross-complainant and a
complaint includes a cross-complaint. That is, in certain situations
when the Legislature intends for a particular statutory provision to apply to
both plaintiffs and cross-complainants, it explicitly indicates the words are
being used interchangeably. (Citations omitted].) Such a direction is
lacking in section 1030. Nothing in the statute states that a plaintiff
includes a cross-complainant.
In sum, the Legislature clearly
knows how to indicate when it wants a statutory provision to apply to both a
plaintiff and a cross-complainant. It also clearly knows how to indicate that a
reference to "plaintiff" must be construed as including a
cross-complainant. The Legislature chose not to adopt either option in this
case. We therefore decline plaintiff's invitation to [*333] rewrite
section 1030 to provide that "plaintiff" includes
cross-complainant. "Where the Legislature makes express statutory distinctions,
we must presume it did so deliberately, giving effect to the distinctions,
unless the whole scheme reveals the distinction is unintended. This
concept merely restates another statutory construction canon: we
presume the Legislature intended everything in a statutory scheme, and we
should not read statutes to omit expressed language or include
omitted language. As our Supreme Court stated, 'we are aware of no
authority that supports the notion of legislation by accident.'
[Citation.]" (Citation omitted.)
(Yao v. Superior Court (2002)
104 Cal. App. 4th 327, 331-33 [bold emphasis added.)
Here, Civ. Proc. Code, § 1030 only refers to a “foreign corporation.” Yet, the Legislature has specifically defined the following: “foreign corporation”; “domestic corporation”; “domestic limited liability company”; and “Foreign limited liability company,” as set forth below:
“Foreign corporation” means any corporation other than a domestic corporation and, when used in Section 191, Section 201, Section 2203, Section 2258 and Section 2259 and Chapter 21, includes a foreign association, unless otherwise stated. “Foreign corporation” as used in Chapter 21 does not include a corporation or association chartered under the laws of the United States.
(Corp. Code § 171.)
“Domestic corporation” means a corporation formed under the laws of this state.
(Corp. Code § 167.)
“Domestic limited liability company” means a limited liability company as defined in subdivision (t) of Section 17000.
(Corp. Code § 167.3)
“Foreign limited liability company” means a foreign limited liability company as defined in subdivision (j) of Section 17701.02.
(Corp. Code § 171.03.)
Because the Legislature only referred to “foreign corporation” in Civ. Proc. Code, 1030, under the principles of statutory construction as set forth in Yao, supra, this Court cannot add “foreign limited liability company” to § 1030, especially when “foreign corporation” and “foreign limited liability company” are separately defined in Corp. Code §§ 171 and 171.03, respectively.
As such, the Court finds that § 1030 does not apply to Plaintiff, a foreign limited liability company. The motion to require Plaintiff to post an undertaking is DENIED.