I. BACKGROUND 

Plaintiff Domenica Azzolini (“Plaintiff”) filed this action against defendants Agenor Mafra-Neto (“Mafra-Neto”), Kim Li Spencer (“Spencer”), and Nick Arbuckle (“Arbuckle”) for damages arising from an automobile accident.¿Mafra-Neto and Spencer filed a cross-complaint against Arbuckle and Roes 1 to 50 for contribution, indemnity, and declaratory relief.  

Defendants/cross-complainants Mafra-Neto and Spencer (collectively, “Defendants”) now move for an order requiring Plaintiff to post an undertaking in the sum of $48,794.70 pursuant to Code Civ. Proc. § 1030.  

Plaintiff opposes the motion, and Defendants filed a reply.  

Defendants assert that this action arises out of a multi-car accident, in which Mafra-Neto was driving a 2016 Tesla Model owned by him and Spencer. Plaintiff, driving a Chevrolet Tahoe, was the vehicle in front of Mafra-Neto. In front of Plaintiff’s vehicle was a red Ford Fusion. Defendants argue that defendant/cross-defendant Arbuckle, who was driving a GMC Yukon, suddenly lost control of his vehicle, swerved into the HOV lane, and first hit Plaintiff’s vehicle before swerving into Mafra-Neto’s Tesla, which caused Mafra-Neto to secondarily impact Plaintiff’s vehicle. Defendants contend that they have a reasonable possibility of obtaining judgment in their favor as not being at fault for the accident.  

Plaintiff argues that she observed a car collision occurring in front of her involving the red Ford Fusion and gray Yukon, and that she began to slow down to avoid the collision when Mafra-Neto rear-ended Plaintiff’s vehicle, which pushed Plaintiff’s vehicle into another vehicle. Plaintiff argues that Defendants have not met their evidentiary burden establishing a reasonable possibility of obtaining judgment in the action. Further, Plaintiff contends that Defendants’ requests for fees and cost are inapplicable, because it requests fees for the depositions of persons who are neither parties or witnesses to the case, in addition to seeking costs for a motion for summary judgment that has not been filed nor is there any evidence indicating that it will be filed. Plaintiff further disputes that expert fees are not recoverable costs unless ordered by the Court. Lastly, Plaintiff contends she is indigent and provides affidavits in support thereof.  

Defendants assert they have sufficiently established with evidence that Arbuckle caused the accident. Defendants contend Plaintiff’s claim of indigency is without documentary support, and contests Plaintiff’s ability to pay. Lastly, Defendants argue that the costs are appropriate based on the amounts anticipated.  

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. (Code Civ. Proc.§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. (Code Civ. Proc. §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. (Code Civ. Proc. §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 (Code Civ. Proc. §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. 

Defendants have submitted evidence showing that Plaintiff has resided in Florida from December 24, 2021 to the present day. (Zaverl Decl., ¶ 3; Exh. B.) Plaintiff does not dispute she is an out-of-state resident. This requirement is therefore met.  

Defendants 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.)  

The evidence submitted is as follows. Plaintiff testified at deposition that she was a passenger in the Chevy Tahoe that was being driven by her ex-husband. (Def. Exh. C.) Plaintiff looked up from her phone when her ex-husband hit the brakes hard, and Plaintiff saw a car in front spinning out of control, which clipped the rear end of the car that was in front of it. (Ibid.) Plaintiff did not see the spinning car make contact with any other cars. (Ibid.) Plaintiff testified she felt the first impact was from behind, and the second impact from the front side. (Ibid.) By comparison, Mafra-Neto’s testimony provides that he saw the Yukon (driven by Arbuckle) swerve between the HOV lane and number 1 lane and collide with the red Ford Fusion. (Def. Exh. D.) After the collision, Mafra-Neto testified that the Yukon forced itself between Plaintiff’s vehicle and the red Ford Fusion. (Ibid.) Mafra-Neto assumed Plaintiff’s vehicle hit Arbuckle because Plaintiff’s vehicle hit the brakes and came to a sudden stop; Mafra-Neto did not actually see this collision. (Ibid.) Mafra-Neto stated he slammed on his brakes but nevertheless ended up hitting Plaintiff’s vehicle.  

Although the parties dispute the order and nature of the impacts to Plaintiff’s vehicle, the salient point is that both agree there was an initial vehicle collision between Arbuckle and another vehicle. As a result of that other collision, Plaintiff’s vehicle braked hard in order to avoid the collision, which ended with Mafra-Neto colliding with Plaintiff’s vehicle as the rearmost vehicle. For the purposes of this motion, the aligned testimonies of both Plaintiff and Mafra-Neto is sufficient to demonstrate that it is reasonably likely that a jury may find that Mafra-Neto, even when operating his vehicle with due care, would not have been able to avoid colliding with Plaintiff’s vehicle under the circumstances. Therefore, Defendants have sufficiently demonstrated the reasonably possibility that this case may result in a defense verdict.  

The court may, in its discretion, waive the bond requirement if the court determines that the principal is unable to give the bond because the principal is indigent and is unable to obtain sufficient sureties. (Code Civ. Proc., § 995.240.) In exercising its discretion, the court shall take into consideration all relevant factors, including but not limited to the character of the action or proceeding, the nature of the beneficiary, and the potential harm to the beneficiary if the provision for the bond is waived. (Code Civ. Proc., § 995.240.) Defendants contend Plaintiff has not submitted any evidence of her indigency, and that even if indigent, the Court has discretion to order her to post bond. However, Plaintiff is not necessarily required to submit supporting documentation to meet her burden.  

Pursuant to Alshafie v. Lallande (2009) 171 Cal.App.4th 421, 432 (citations omitted) regarding a plaintiff’s burden to establish entitlement to relief from the obligation to post bond due to indigency:  

“In the first instance the “party seeking relief from the requirement of posting a bond or undertaking has the burden of proof to show entitlement to such relief.” It is by no means certain, however, what the nature of that showing must be. On one end of the spectrum, a sworn statement of hardship that includes some financial information but no supporting documentation may be sufficient. For example, in Hood v. Superior Court, Division One of this court held—in a slightly different context, but, like here, with the potential of barring a litigant from the courthouse—a litigant's sworn declaration an order obligating him to pay discovery referee's fees would be a financial hardship and a statement of his income and expenses are sufficient to justify a fee waiver, absent something in the declaration giving the court reason to doubt its veracity. The court reversed the trial court's order requiring the litigant to provide documentation of his income, whether by tax records or other documents.     

On the other end of the spectrum, a party formally seeking in forma pauperis status to be relieved of paying specified court fees and costs, which we believe could include a section 1030 undertaking as an additional court fee or cost (see Cal. Rules of Court, rule 3.62(6)), must complete a mandatory Judicial Council form (currently designated form FW-001) and provide the specified financial information. 7 (Rule 3.51(a).  An applicant who is not receiving government benefits from certain public assistance and supplemental income programs or whose monthly income exceeds 125 percent of the current monthly federal poverty guidelines may nevertheless qualify to proceed in forma pauperis if his or her income is not sufficient to pay for court fees and costs as well as the common necessaries of life for the applicant and the applicant's family. In such a case, the applicant must complete the section of form FW-001 requiring disclosure of detailed financial information, including all sources of income for the applicant and any family members living in the home who depend in whole or part on the applicant for support; interests in property such as cash, checking and savings accounts, vehicles and real estate; and monthly expenses such as rent, food, household supplies, clothing, medical, child care and transportation.”   

Here, Plaintiff’s counsel declares she obtained quotes from two separate bond surety agencies, which indicated that they would not issue a bond unless Plaintiff put up 2% cash of the bond as fees, and provide cash or a line of credit to post the bond. (Opp. Wong Decl. ¶¶ 5, 7-8.) Further, Plaintiff’s counsel declares she was advised that it was unlikely Plaintiff’s bond would be approved by the underwriters due to Plaintiff’s lack of income, assets, and lack of credit. (Id. at ¶ 8.) Plaintiff declares her only income is from disability assistance, which amounts to approximately $943 a month. (Opp. Exh C; Plf. Decl. ¶ 10.) She states that she relies entirely on family for financial support, and that she does not own any real property or appreciable assets, nor does she have significant investments or money in her banking accounts. (Id. at ¶¶ 11-12.) Plaintiff provides that she pays approximately $940 in monthly expenses. (Opp. Exh. C; FW-001.) 

 If adequate evidence, in the form of declarations of indigency or affidavits of inability to obtain the necessary bond, the Court has discretion to waive the requirement of a bond or undertaking. (Williams v. Freedomcard, Inc. (2004) 123 Cal.App.4th 609, 614.) It is an abuse of discretion to waive the undertaking the requirements where there has been a weak or incomplete showing of indigency. (Ibid.) However, “If it is apparent from the plaintiff's declaration and financial information that obtaining an undertaking would be impossible, the law does not require the futile act of attempting to do so.” (Alshafie, 171 Cal.App.4th at 435 n. 10.) Here, the Court finds the affidavit submitted by Plaintiff sufficient to attest to her indigency, and that Plaintiff’s counsel has made a prima facie showing that the principal is unlikely to issue a bond due to Plaintiff’s financial status. The Court need not reach the arguments regarding the propriety of the costs sought by Defendants.  

III. CONCLUSION 

Based on the foregoing, Defendants’ motion for an order requiring Plaintiff to post bond is DENIED.   

Moving party is ordered to give notice.   

PLEASE TAKE NOTICE: 

Dated this 5th day of April 2024