I. BACKGROUND 

Plaintiff Cebert Green (“Plaintiff”) filed this action against defendants Kameron Lee Kai and Geoffrey Kai (“Defendants”) for damages arising from an automobile collision.¿ 

Defendants now move for an order requiring Plaintiff to post an undertaking in the sum of $100,000 pursuant to CCP § 1030.  

Plaintiff opposes the motion. As of March 20, 2024, no reply has been filed. 

II. MOTION TO REQUIRE PLAINTIFF TO FILE AN UNDERTAKING  

In an action or special proceeding brought by a nonresident plaintiff, the defendant may at any time move for an order requiring the plaintiff to post security.   (CCP §1030(a).)  The stated grounds for the motion are that the plaintiff resides out of state or is a foreign corporation, and there is a reasonable possibility that the moving defendant will obtain a favorable judgment. (CCP §1030(b).) The motion must be accompanied by a supporting affidavit or declaration which establishes the stated grounds for the motion and sets forth the nature and amount of the costs and attorney fees the defendant has incurred and expects to incur until the action is concluded.  (CCP §1030(b).)  It must also be accompanied by a memorandum of points and authorities.  (CCP §1030(b), CRC 313(a).) 

The plaintiff may pursue a number of tactics in opposing a motion for security. These may include: (1) proof that the plaintiff is not a nonresident; (2) showing the plaintiff's indigency (CCP §995.240); and (3) arguing the defendant's failure to make an adequate prima facie showing of a reasonable possibility of success in the action.  

In cases where adequate grounds exist for granting the motion for security, the plaintiff can still challenge the amount of the costs and attorney fees requested by the defendant. The security can be ordered only for "reasonable" costs and attorney fees, and the defendant must be otherwise entitled to recover those fees by contract or by another statutory provision.  (CCP §1030(a).) 

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

Defendants submit evidence showing Plaintiff is a resident of Salisbury, Maryland. (Dailo Decl., ¶ 5-8; Exh. B.) Plaintiff does not dispute he is an out of state resident. However, Defendants’ perfunctory motion fails to provide any adequate grounds for an undertaking. A defendant must show a reasonable possibility of prevailing on the merits at trial. The defendant is not required to show that there is no possibility that the plaintiff can win at trial, or that it is reasonably likely that the defendant will prevail, only that it is reasonably possible that the defendant will win. The court must determine whether there is substantial evidence to support such a determination. (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1432-33.) In this motor vehicle incident, in which Plaintiff claims he was rear-ended by Defendants, Defendants have provided zero evidence to support the reasonable possibility that they will prevail at trial. A conclusory statement that a jury would find Defendants were not the sole cause of damages, without more, is insufficient to meet Defendant’s burden of supporting this determination with substantial evidence. Defendants fail to establish how Plaintiff’s involvement in a subsequent motor vehicle accident would, in any way, affect Plaintiff’s claims of liability and damages against Defendants. Further, defense counsel’s affidavit completely fails to substantiate the amount of costs and attorney fees expected to incur would justify a $100,000 bond, especially when the actual costs currently incurred purportedly amount to $28,978. Defense counsel’s lone statement that this belief is “based upon Defense Counsel’s experience and preparation of memorandum of costs” is far from adequate.  

III. CONCLUSION 

Based on the foregoing, Defendants’ motion for undertaking is DENIED.  

Moving party is ordered to give notice.   

PLEASE TAKE NOTICE: 

Dated this 26th day of March 2024