Judge: Michael Shultz, Case: 25STCV02449, Date: 2025-04-04 Tentative Ruling
Case Number: 25STCV02449 Hearing Date: April 4, 2025 Dept: 40
25STCV02449
Allofit, Inc v. Domo Manufacturing and Contracting, LLC
Friday,
April 4, 2025
[TENTATIVE]
ORDER DENYING
I.
BACKGROUND
Plaintiff
alleges that Defendant, Domo Manufacturing and Contracting, LLC (“Defendant) or
“Domo”) sought vendors to manufacture and source various furniture, fixtures,
and equipment for the interiors of 300 prefabricated apartment units that
Defendant intended to make (the “Project”). Defendant contracted with Plaintiff
to provide molds, fixtures, products, and hardware for the project’s bathrooms
and provided other interior designs. Defendant allegedly failed to uphold its
obligations under the contract. Plaintiff alleges claims for fraud and breach
of contract.
II.
ARGUMENTS
Defendant
argues that Plaintiff is a Delaware corporation. Foreign corporations may be
required to post an undertaking as security for costs and attorney’s fees
incurred by Defendant to defend the action since there is a reasonable
possibility that Defendant will prevail. The court should order Plaintiff to
post an undertaking of $182,260 in 30 days.
In opposition, Plaintiff states does not
dispute it is a foreign corporation, however, Defendant made the same argument
in an adversarial action in the bankruptcy court which the bankruptcy court rejected.
Defendant has not met its burden of showing a reasonable probability of
prevailing. Defendant must also establish that Plaintiff does not have
sufficient means to satisfy a potential award of fees and costs. Plaintiff
objects to the declaration submitted by Defendant since it is hearsay. The
claimed fees and costs are outrageous.
In reply, Defendant argues that Plaintiff
did not request judicial notice of court records in the Florida bankruptcy
action. The transcript submitted is not signed and is uncertified. The
bankruptcy action is not applicable nor binding in this action. Plaintiff does
not cite any authority in opposition to the motion.
III.
LEGAL
STANDARDS
The court has discretion to require a
nonresident or foreign plaintiff to post a bond to secure a defendant’s
reasonable attorney’s fees and costs if a defendant can show a reasonable
probability of prevailing on the merits. (Code Civ. Proc., § 1030 subd. (b).) Defendant shall set forth the
nature and amount of costs defendant has incurred and expects to incur by the
end of the proceeding. (Code Civ. Proc., § 1030 subd. b). The purpose of the statute is to protect
California residents "in light of the difficulty of enforcing a judgment
for costs against a person who is not within the court's jurisdiction.” (Yao
v. Superior Court (2002) 104
Cal.App.4th 327, 331.)
In meeting its burden, the moving party
must "present the best evidence available to divine the possible outcome
of the trial de novo, which is all that section 1030, subdivision (a) of the
Code of Civil Procedure requires.” (Shannon
v. Sims Service Center, Inc.
(1985) 164 Cal.App.3d 907, 914.)
IV.
DISCUSSION
A.
Objections.
1)
Plaintiff’s
objections to the Declaration of Edward Kaen, Defendant’s manager.
All
objections are sustained for lack of foundation and hearsay. Mr. Kaen purports
to be Defendant’s manager and custodian of records. The only document submitted
as evidence is the parties’ contract and addendum, the existence of which is
not in dispute. (Kaen Decl., Ex. A.) The
declaration otherwise recounts representations made during negotiations between
Robert Mayer, Plaintiff’s principal, and “Domo” although Domo’s representatives
are not identified. (Kaen decl., ¶ 8, 18.) Mr. Kaen attests to the representations
Domo apparently relied on and representations made by Mr. Mayer, which is
speculative and hearsay, respectively. (Id. at ¶ 8.) The effect of the contract is a legal
conclusion. (Id. at ¶ 9.) Mr. Kaen attests to conduct evidenced by
invoices, none of which are provided. (Id. at ¶¶ 10 -13.) Subsequent agreements made
between Mr. Mayer and Domo lack foundation and are hearsay. (Id.)
Mr. Kaen has no basis for determining what
Domo was “led to believe” based on statements made by others. (Id. at ¶ 14.) Mr. Kaen attests to the meetings
with Defendant’s representatives, none of whom are identified; expectations of
other parties lack foundation (Id. at ¶ 15); assertions
based on information and belief are not admissible (Id. at ¶ 16); Mr. Kaen refers to emails, none of
which are submitted and are hearsay. (Id. at ¶ 17). The
assertion that Domo did not deceive Plaintiff is a legal conclusion unsupported
by any evidence. (¶ 19, 21.) “Delay and
damages” purportedly incurred by Domo lacks foundation and is hearsay. (¶ 20-21.).
Plaintiff’s failure to fulfill its obligations is a legal conclusion. (¶ 21-22.)
2)
Defendant’s
objections.
Objections
to the declaration of Robert Mayer are sustained for lack of foundation and
hearsay. Mr. Mayer’s declaration is equally infirm as it is a rolling narrative
of statements made by others, other parties’ beliefs and expectations, and
purports to explain the effect and impact of the parties’ agreement which are legal
conclusions.
The
court sustains objection to a trial transcript in a bankruptcy court action,
Case No. 23-1212-EPK In Re: Robert Howard Mayer. (Mayer Decl., Ex. A.) The transcript is not certified and is
inadmissible hearsay.
B.
Defendant
has not met its burden in the first instance.
The
parties do not dispute the first element, which is that Plaintiff is a
nonresident of California. However, Defendant did not meet the second element
of showing a probability of prevailing on the merits. The Kaen declaration is
inadmissible for reasons explained above.
V.
CONCLUSION
Based
on the foregoing, Defendant’s motion is DENIED.