Motion for an Order Requiring Petitioner to File an Undertaking
the court finds a stay of the Probate Proceeding pending completion of the Civil Action would satisfy the requirements of judicial economy and avoid the possibility of contradictory decisions and awards.
Respondents’ motion for stay is GRANTED.
Respondents are directed to give notice. 1 Plunkett – Trust (2024 – MOTION FOR UNDERTAKING 01405064) Respondents Laura Plunkett, Nicholas Plunkett, and Daniel Plunkett’s Motion for an Order Requiring Petitioner, Roger Plunkett, to File an Undertaking in the Amount of $8,633.78 (ROA 105) is GRANTED.
Respondents’ Request for Judicial Notice is GRANTED as to Exhibit 2 and DENIED as to Exhibits 1 and 3.
Respondents seek an order compelling Petitioner to furnish an undertaking on the grounds that Petitioner is a resident of North Carolina and there is a reasonable possibility Respondents will obtain judgment in their favor.
The motion is made pursuant to Code of Civil Procedure section 1030 (§ 1030) which reads, in full:
“(a) When the plaintiff in an action or special proceeding resides out of the state, or is a foreign corporation, 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. For the purposes of this section, “attorney’s fees” means reasonable attorney’s fees a party may be authorized to recover by a statute apart from this section or by contract.
(b) The motion shall be made on the grounds that the plaintiff resides out of the state or is a foreign corporation and that there is a reasonable possibility that the moving defendant will obtain judgment in the action or special proceeding. The motion shall be accompanied by an affidavit in support of the grounds for the motion and by a memorandum of points and authorities. The affidavit shall set forth the nature and amount of the costs and attorney’s fees the defendant has incurred and expects to incur by the conclusion of the action or special proceeding.
(c) 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.
(d) The plaintiff shall file the undertaking not later than 30 days after service of the court’s order requiring it or within a greater time allowed by the court. If the plaintiff fails to file the undertaking within the time allowed, the plaintiff’s action or special proceeding shall be dismissed as to the defendant in whose favor the order requiring the undertaking was made.
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(e) If the defendant’s motion for an order requiring an undertaking is filed not later than 30 days after service of summons on the defendant, further proceedings may be stayed in the discretion of the court upon application to the court by the defendant by noticed motion for the stay until 10 days after the motion for the undertaking is denied or, if granted, until 10 days after the required undertaking has been filed and the defendant has been served with a copy of the undertaking. The hearing on the application for the stay shall be held not later than 60 days after service of the summons.
If the defendant files a motion for an order requiring an undertaking, whichis granted but the defendant objects to the undertaking, the court may in its discretion stay the proceedings not longer than 10 days after a sufficient undertaking has been filed and the defendant has been served with a copy of the undertaking.
(f) The determinations of the court under this section have no effect on the determination of any issues on the merits of the action or special proceeding and may not be given in evidence nor referred to in the trial of the action or proceeding.
(g) An order granting or denying a motion for an undertaking under this section is not appealable.”
“The purpose of [§ 1030] is to enable a California resident sued by an out-of-state resident ‘“‘to secure costs in light of the difficulty of enforcing a judgment for costs against a person who is not within this court's jurisdiction.’”’ [Citation.] The statute therefore acts to prevent out-of-state residents from filing frivolous lawsuits against California residents.” (Yao v. Superior Court (2002) 104 Cal.App.4th 327, 331.)
Citing Probate Code sections 1002, 15602, 15642, & 17211, Petitioner argues § 1030 does not apply to probate proceedings. However, § 1030 explicitly applies to “special proceedings.” (§ 1030(a).) “Probate matters fall within the category of special proceedings.” (Coberly v. Superior Court (1965) 231 Cal.App.2d 685, 690; see Code of Civ. Proc., §§ 21, 22, & 23.) Accordingly, § 1030 applies and the statutes cited by Petitioner do not direct otherwise.
To succeed on their motion, Respondents must show Petitioner lives out of state and there is a reasonable possibility they will obtain judgment in the proceeding. (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1431.)
In support of their motion, Respondents ask the court to take judicial notice of the First Amended Petition and Second Supplement Concerning the Internal Affairs of the Trust (“Petition” filed as ROA 64), Petitioner’s response to Form Interrogatory No. 2.5, and specified deposition testimony of John Anderson, allegedly the decedent’s attorney.
The court takes judicial notice of the fact the petition was filed and contained certain allegations. The court does not, however, take judicial notice of the truth of any of the allegations included in the petition. (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375 [“Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning”].)
The court does not take judicial notice of either the interrogatory responses or the deposition testimony. (TSMC North America v. Semiconductor Manufacturing International Corporation (2008) 161 Cal.App.4th 581, 594, fn. 4.)
Although the court does not take judicial notice of the discovery, that is not the end of the inquiry. On an evidentiary motion such as a motion for an undertaking, a court may consider the evidence offered by the parties; judicial notice is not necessary. (Yao, supra, 104 Cal.App.4th at p. 914 [the process for a motion under § 1030 “‘is the one usually prescribed for pretrial motions, that is, the opportunity to present declarations and other documentary evidence, the opportunity for both counsel to be present, and the opportunity to be heard’”].) The interrogatory response establishes Petitioner does not live in California. Respondents have met their burden on the first element.
As for the second “reasonable possibility” element, “Respondents [a]re not required to show that there [i]s no possibility that appellant could win at trial, but only that it [i]s reasonably possible that respondents w[ill] win.” (Baltayan, supra, 90 Cal.App.4th at 1432.) The deposition testimony of John Anderson is sufficient to show a reasonable possibility Respondents will win.
The motion for undertaking is GRANTED. Petitioner is required to post an undertaking in the amount of $8,633.78 within 30 days of this order.
Respondents are directed to give notice.