Second District, Division 7 Provides Guidance On Discretionary Decision Making Under CCP Section 1030.
Code of Civil Procedure section 1030 vests trial courts with discretion to require out-of-state plaintiffs to post an undertaking to pay costs to prevailing defendants where there is a reasonable possibility of a decision favorable to the defense. The Second District, Division 7 gave some guidance on the discretionary factors that must be weighted when lower courts are dealing with a financially indigent plaintiff residing out of state.
In Alshafie v. Lallande, Case No. B198798 (2d Dist., Div. 7 Feb. 23, 2009) (certified for publication), a trial court granted a section 1030 motion by several defendants in legal malpractice actions to require an out-of-state plaintiff to post an undertaking of $159,312.50 in total. The cases were dismissed when plaintiff failed to file the undertaking. The lower court’s decision was reversed on appeal and remanded for further supplemental motion proceedings.
After observing that a trial court has discretion to waive security posting under section 1030 upon a showing of indigency (Baltayan v. Getemyan, 90 Cal.App.4th 1427, 1433 (2001)), the appellate court did lay down a standard for lower courts to follow given that it was by no means certain what type of showing of indigency needed to be made at the time. For plaintiffs claiming in forma pauperis status, the appellate court decided the lower court “should follow the procedures set forth in [California Rules of Court,] rule 3.53(b)—or generally similar procedures—applicable when a litigant fails to provide the required information when requesting in forma pauperis status or when the information provided generates concerns about the applicant’s financial situation. [Citations omitted.] That is, to fulfill its statutory duties when exercising its discretion, the court must review the plaintiff’s showing, identify deficiencies, if any, and give the plaintiff the opportunity to supply additional information that may be necessary to establish his or her entitlement to a waiver under the circumstances of the particular case. Only by taking such a proactive role can the trial court properly balance the respective rights of the parties while minimizing the circumstances in which a potentially meritorious case is dismissed solely because the plaintiff cannot post an undertaking.” (Slip Opn., at pp. 16-17.)
BLOG UNDERVIEW—At one point, the appellate panel used the phrase “snarky questions.” Nice touch. Snarky: sarcastic, impertinent, or irreverent in tone or manner (origin = snide remark). See David Denby, Snark.
“Leave him here to his fate—it is getting so late!”
The Bellman exclaimed in a fright.
“We have lost half the day. Any further delay,
And we sha’nt catch a Snark before night!”From Lewis Caroll's Hunting of the Snark
Illustration below by Henry Holiday (1876)
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