Castro v. Cies Family Trust

# Case Name Tentative

52. Castro v. Defendant Coldwell Banker Realty’s Motion for Undertaking is Cies Family DENIED as it has been dismissed from this action with Trust prejudice. (See ROA 340)

2023- Defendant The Cies Family Trust’s Joinder in the Motion is also 01322100 DENIED.

Pursuant to Code of Civil Procedure § 1030, Defendant Coldwell Banker Realty initially moved for order requiring Plaintiff to post an undertaking in the amount of $69,135.87. The motion was joined by defendant The Cies Family Trust (“CFT”). CFT seeks an undertaking in the amount of $90,000.

Under Section 1030(a), an undertaking must be in an amount sufficient as security for “costs and attorney’s fees which may be awarded in the action.”

Here, CFT has provided no persuasive evidence for the $90,000 undertaking it seeks. CFT’s counsel states it has incurred approximately $3,793.60 in costs, but does not provide a sufficient basis for the additional $86,000+ in costs it seeks. Therefore, even assuming CFT has met all the statutory requirements of Section 1030(a), the Court has no basis to require Plaintiff to post a $90,000 undertaking.

Additionally, in the opposition, Plaintiff has created a factual dispute regarding Defendant’s knowledge of a water leak which sufficiently challenges whether there is a reasonable possibility that Defendant will prevail. On reply CFT argues for the first time that Plaintiff failed to name Leslie Cies and Dr. Cies as trustees of the Cies Family Trust, as a trust is not a separate legal entity capable of being sued. It requests the Court to consider this issue in ruling on the motion.

“It is elementary that points raised for the first time in a reply brief are not considered by the court.” (Levin v. Ligon (2006) 140 Cal.App.4th 1456, 1486.) Because CFT failed to raise this issue in its Joinder, the Court will not consider the argument.

For the foregoing reasons, the motion is also DENIED as to defendant CFT.

Defendant The Cies Family Trust shall give notice of this ruling.

53. Daichendt v. Defendants Aviation Consultants, Inc., William Aviation Borgsmiller, Freeman Holdings of CenCA LLC and Consultants, Nathan Ross’ Motion to Strike Portions of the Fifth Inc. Amended Complaint