Alpha-O Peptides AG vs. Regents of the University of California

# Case Name Tentative 1 Alpha-O Peptides AG vs. Regents of the University of California

2024-01381470 Motion to File an Undertaking

Defendants Regents of the University of California – Irvine and Lbachir Benmohamed, PhD’s Motion to Require Plaintiffs Alpha- O Peptides AG and Peter Burkhard, PhD to provide an undertaking pursuant to Code Civ. Proc. §1030 is DENIED. Defendants Sunomix Therapeutics and Mohammed Bouziane, PhD’s Joinder in Moving Defendants’ motion is DENIED.

“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.” (Code Civ. Proc., § 1030, subd. (a).)

The motion must be supported by points and authorities and affidavits showing: (1) plaintiff's nonresidency; (2) a “reasonable possibility” defendant will obtain judgment in the action; and (3) the nature and amount of costs and attorney fees defendant has incurred and expects to incur in the action. (Code Civ. Proc., § 1030, subd. (b).)

To obtain an order requiring such bond, defendant must show a “reasonable possibility” that it will prevail at trial, and a detailed estimate of the costs it is likely to incur. (Code Civ. Proc. § 1030 subd. (a), (b).)

Here, the court need not address the issues of Plaintiff’s residency and whether Defendants have established a reasonable possibility of prevailing against Plaintiff’s claims because neither Moving Defendants nor Joining Defendants have set forth a sufficient estimate of costs and fees. Code of Civil Procedure section 1030 defines attorney’s fees as “reasonable attorney’s fees a party may be authorized to recover by a statute apart from this section or by contract.” (Code of Civ. Proc., § 1030, subd. (a).)

The bulk of the requested undertaking consists of anticipated attorneys’ fees. Code of Civil Procedure section 1030 makes it clear that an independent basis for recovery of fees is required. Section 1030 itself does not provide a basis for recovery.

Moving Defendants point to Code of Civil Procedure section 128.5

as a basis for fee recovery but this section contemplates an award of fees as sanctions, rather than as a matter of costs, so it does not provide a valid basis for including a fee award in a section 1030 undertaking.

Moving Defendants also point to Civil Code section 3426.4, which allows recovery of fees as costs by a prevailing party “if a claim of misappropriation is made in bad faith...” For the purposes of section 3426.4, to establish a claim is made in bad faith, there must be a showing of “ (1) objective speciousness of the claim, and (2) subjective bad faith in bringing or maintaining the action, i.e., for an improper purpose.” (Cypress Semiconductor Corp. v. Maxim Integrated Products, Inc. (2015) 236 Cal.App.4th 243, 260.) There is no evidence to support a finding that Plaintiff’s trade secret causes of action are brought in bad faith.

Moving Defendants also seek to assert that they will incur $55,000 in costs defending this action. Moving Defendants’ declaration, however, contains nothing more than assertions of this $55,000 figure without any factual support. Merely listing estimated categories of costs does not set forth “the nature and amount of the costs and attorney’s fees the defendant has incurred and expects to incur.” (Code Civ. Proc., §1030, subd. (b).)

Plaintiff shall provide notice of this ruling.

2 Atiyeh vs. Zhu

2026-01573491 Motion – Other

Vacated. See minute order dated 9/8/26.

3 Incentax, LLC vs. Allied West Paper Corporation

2025-01485830 Motion for Summary Judgment and/or Adjudication

No tentative. 4 Kiani vs. Masimo Corporation

2024-01426785 Off calendar.

Vacated. See minute order dated 8/28/26. 5 Kim vs. Hong

2025-01533601 Demurrer to Amended Complaint

All parties and counsel are admonished that the meet and confer efforts with respect to this demurrer do not comply with California Code of Civil Procedure section 430.41, subdivision (a). Parties “shall meet and confer in person, by telephone, or by video conference with the party who filed the pleading that is subject to