Motion to waive or reduce undertaking
However, because the Court finds Cross-Defendant has not met his burden to show his conduct giving rise to the Cross-Complaint was protected under the anti-SLAPP statute, the burden does not shift to Cross-Complainants to show by competent and admissible evidence they will prevail on the merits of their claims. Macias v. Hartwell (1997) 55 Cal.App.4th 669, 675.
Accordingly, for the reasons set forth above, Cross-Defendant’s Special Motion to Strike the Cross-Complaint pursuant to Code of Civil Procedure § 425.16 is hereby DENIED.
Attorney Fees
Cross-Defendant has not prevailed on his special Motion to Strike. Thus, his request for attorney fees is DENIED.
4. CU0001681 Randy Ryan Agno et al vs. James L Gould, IV. et al
Plaintiffs’ motion to waive or reduce undertaking is denied.
The conditioning of the issuance of a preliminary injunction upon the posting of an undertaking is statutorily required: “On granting an injunction, the court or judge must require an undertaking on the part of the applicant....” (Code Civ.Proc., § 529, subd. (a); emphasis added.)” Abba Rubber Co. v. Sequist (1991) 235 Cal.App.3d 1, 10. “That duty is mandatory, not discretionary.” Ibid.
Bond requirements can be waived or forfeited in narrow circumstances, outside the statutory exceptions in Code of Civil Procedure § 529(b). The California Supreme Court has approved waiver of an injunction bond in cases where the party seeking the injunction is indigent. Conover v. Hall (1974) 11 Cal.3d 842, 852-853. The requirement for a preliminary injunction can also be waived where the parties stipulate to an injunction. Greenly v. Cooper (1978) 77 Cal.App.3d 382, 385
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“[U]nder proper circumstances California courts do have the power to dispense with bond requirements intended to protect an adversary's financial interest.” Conover, supra, 11 Cal.3d 842, 851. Additionally, a formal in forma pauperis application is not required before relief can be granted. Id.; County of Sutter v. Superior Court (1966) 244 Cal.App.2d 770, 772 (“[The plaintiff] did not in so many words seek—nor did the court grant—leave to proceed In forma pauperis. The order simply grants her leave to proceed without security for costs.
Because it is grounded on her indigence, we view it by the same standards as an in forma pauperis order.”) If the court can “reasonably conclude from the facts before it that plaintiffs were ‘poor’ and could not afford to post an injunction bond to cover the state's potential damages,” the court may find a limited exception to the posting of an undertaking. Conover, supra, at 853-854.
In support of their reply, Plaintiffs filed a supplemental declaration attaching exhibits regarding their financial hardship. “Points raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.” American Drug Stores, Inc. v. Stoh (1992) 10 Cal.App.4th 1446, 1453.
Defendants raised the purchase of a home by Plaintiff Randy Agno as a rebuttal to Plaintiffs’ assertion of financial hardship in its opposition. See Defendants’ Request for Judicial Notice. Although Plaintiffs failed to include substantial evidence of their assertions of financial hardship in their opening brief, consideration of the reply evidence does not alter the Court’s determination. Thus, the Court’s order is one that results from consideration of all pleadings submitted in relation to Plaintiff’s request.
It is notable this action stems from ownership of a vacation cabin, not a primary residence. In addition, Plaintiffs have asserted they acquired other vacation cabins during the pendency of this action. Finally, Plaintiff Randy Ryan Agno receives non-taxable disability income of almost $5,000 per month, and, although her income is unknown, the Court is aware Plaintiff Amy Beth Agno is employed due to her multiple remote court appearances during which she indicates she is at work. The Court does not find Plaintiffs to be indigent nor that they have provided evidence of circumstances which would cause the Court to except them from the mandate of posting an undertaking.
Accordingly, Plaintiffs’ request is hereby DENIED.
5. CU0001840 Richard A Perdomo Canales v. Best Western International, Inc., et al.
Defendant Best Western International, Inc. motion to compel responses to Form Interrogatories (Set One) is granted. Plaintiff Richard A. Perdomo Canales is ordered to provide further verified responses, without objections, to Form Interrogatories Nos. 12.2, 12.3, and 14.1 within thirty (30) days of notice of entry of this order.
Meet and Confer
Per the Declaration of Defendant’s counsel, efforts were made to meet and confer prior to this filing. Mezger Decl., ¶¶ 8-9, Exhs. 5-6. It appears Plaintiff’s counsel responded to these efforts by email noting Defendant’s meet and confer efforts were insufficient because they did not identify the specific deficiencies alleged and relief sought. Mezger Decl., ¶ 10, Exh.
7. However, Plaintiff failed to offer an extension to Defendant’s motion deadline to allow more time for meet and confer efforts. Thus, the Court admonishes Defendant for not engaging in meet and confer efforts prior to the eve of its motion deadline, and admonishes Plaintiff for arguing meet and confer efforts were insufficient without attempting to engage in further efforts prior to a motion being filed. The Court reminds the parties the discovery process is designed to be self-executing.
Legal Standard
A motion to compel further responses lies where the responses to the interrogatories are deemed improper by the propounding party, i.e., meritless or overly general objections, evasive or incomplete answers. Code Civ. Proc., § 2030.300. A motion to compel further responses is addressed to the sound discretion of the trial court; the court considers the opposing party’s objections; the relationship of the information sought to the issues framed in the pleadings; the likelihood that disclosure will be of practical benefit to the party seeking discovery; and the burden or expense likely to be encountered by the responding party in furnishing the information sought. Columbia Broadcasting System, Inc. v. Superior Court (1968) 263 Cal.App.2d 12, 19.
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