California law says if you want to play in California, stay in California or pre-pay in California

Scales of JusticeAny plaintiff in an action or special proceeding who resides out of state or is a foreign entity remains susceptible to an arduous motion by a defendant at any time during the proceeding.

“The motion requires the plaintiff to post a bond or undertaking to secure an award of costs and attorney fees which could be awarded to the defendant in the action.” (California Code of Civil Procedure §1030.)

The burden on the moving defendant is limited to showing two practical elements: (1) plaintiff resides out of state or is an out of state entity; and (2) the defendant can show a reasonable possibility of prevailing in the matter. (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1430.)

When looking for a reasonable possibility, the Court reviews any substantial evidence that could support the moving party winning at trial. (Shannon v. Sims Service Center, Inc. (1964) 164 Cal.App.3d, 911 (prior arbitration award qualified as substantive evidence).) Declarations with key documents reviewed under judicial notice support the reasonable possibility element. And a prevailing party attorney fee clause adds further momentum in the motion.

The amount of the bond or undertaking is set at the discretion of the trial court. However, the ideal scenario exists where an out of state plaintiff has filed several unsuccessful motions in pre-trial work up such as a motion for judgment on the pleadings and/or a motion for summary adjudication. Upon surviving those motions and based on the declarations and documents filed therein, defendant’s counsel can use those costs and fees to support a hefty amount for the bond in the 1030 motion. Ultimately, the penalty for failing to post the bond is dismissal.

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