Judge: Nathan Vu, Case: 30-2021-01233700, Date: 2022-11-07 Tentative Ruling
Please Note: The hearing on this matter has been scheduled for 8:30 A.M.
Motion to Order Undertaking
Defendant Donald Geier’s motion for an order requiring Plaintiff Alicja Matak to file an undertaking is DENIED.
PLaintiff Alicja Matak’s request for judicial notice is GRANTED. Defendant Donald Geier’s request for judicial notice is GRANTED. However, the grant or denial of any of the requests for judicial notice had no effect on the court’s ruling.
Defendant Donald Geier moves for an order requiring Plaintiff to file an undertaking in the amount of $350,00 to secure an award of attorney’s fees.
Civil Procedure Code section 1030(a) provides, in relevant part:
When the plaintiff in an action or special proceeding resides out of the state . . . 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.
“Code of Civil Procedure section 1030 provides that upon a defendant’s motion, the trial court is required to order an out-of-state plaintiff to file an undertaking to secure recoverable costs and attorney’s fees if the defendant shows a reasonable possibility that it will obtain judgment in the action.” (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1430.)
Statutory provisions requiring security for costs and fees by a person residing outside the state, such as Section 1030, are based on the probable difficulty or impracticability of enforcing court orders against persons not dwelling within the jurisdiction of the state courts. (Myers v. Carter (1960) 178 Cal App 2d 622, 625.)
The motion to require the undertaking must be supported by points and authorities and affidavits showing: (1) Plaintiff’s nonresidency; (2) a “reasonable possibility” defendant will prevail in the action; (3) the nature and amount of costs and fees defendant is likely to incur in the action. (Code Civ. Proc., § 1030(b); Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1433.) The moving party has the burden of proof. (Alshafi v. Lallande (2009) 171 Cal.App.4th 421.)
“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.” (Code Civ. Proc., § 1030(c).)
In this case, there is no dispute that Plaintiff is not a resident of this state. Further, Defendant Geier presents substantial evidence and law to support his contention that he took no part in any alleged scheme against Plaintiff, that he competently discharged any duties owed in the underlying malpractice case, and that Plaintiff cannot prove any recoverable damages based on Defendant Geier’s conduct. (See Geier Decl. ¶¶ 2-6.) Plaintiff argues that Defendant Geier is liable for the claims asserted against him, but fails to submit evidence sufficient to show that Defendant Geier does not have a reasonable possibility of prevailing on those claims.
Plaintiff also contends that the court should waive the bond because she is indigent. (See Code Civ. Proc., § 995.240 [“The court may, in its discretion, waive a provision for a bond in an action or proceeding and make such orders as may be appropriate as if the bond were given, 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, whether personal or admitted surety insurers.”].) Plaintiff, however, provides no facts or evidence whatsoever in support of this contention. (fn.1)
Nonetheless, the court cannot grant the motion in this case because Defendant Geier fails to meet his burden to show the nature and amount of costs and fees that he is likely to incur as a prevailing party. (See Code Civ. Proc., § 1030, subd. (a); see also Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2022) ¶ 11:280 [defendant must provide detailed estimate of costs it is likely to incur].) Defendant Geier requests a bond in the amount of $350,000, but does not explain how that amount will be incurred with any specificity.
Defendant Geier also fails to show how that amount — or any portion thereof — constitutes recoverable attorney’s fees or costs. Defendant Geier argues he is entitled to recover attorney’s fees pursuant to Civil Code section 1717. That provision, however, applies only if there exists a contract providing for the recovery of attorney’s fees. Defendant Geier does not point to any such contract.
Defendant Geier also cites to other statutes in his reply brief, but none show that he is entitled to recover any attorney’s fees. Civil Procedure Code section 1038 expressly applies to civil proceedings under the Government Claims Act or “for express or implied indemnity.” The operative complaint includes no such claims. Civil Procedure Code section 2033.420 relates to discovery sanctions — not the recovery of attorney’s fees to a prevailing party on the merits.
Plaintiff shall give notice of this ruling.
(fn.1) If the court had been inclined to grant this motion, it would have given the Plaintiff an opportunity to supply additional information to support her contention that she is indigent. (See Alshafie v. Lallande (2009) 171 Cal.App.4th 421, 435-36 [to fulfill its statutory duties in exercising its discretion to waive bond, court must identify the deficiencies in the plaintiff’s showing of indigence and give the plaintiff opportunity to supply additional information necessary to establish entitlement to waiver].) However, Plaintiff is informed that this does not mean she can repeatedly fail to provide the necessary support.