McColgan vs. Mazda Motor of America, Inc.

7 McColgan vs. Mazda Motor of America, Inc.

2025-01495373 Motion for an order for Non-Resident Plaintiff to file an undertaking

Defendant Mazda Motor of America, Inc.’s motion to require nonresident plaintiff Kyle McColgan to provide an undertaking is DENIED. (Code Civ. Proc., § 1030 [authorizing requested relief].) Moving party has not shown a “reasonable possibility” that it will prevail in this action. (Code Civ. Proc., § 1030, subd. (b).) As to plaintiff’s 1st cause of action for violation of the California Invasion of Privacy Act [CIPA], Cal. Penal Code § 637.7, moving party relies on federal district court opinions, one of which is unpublished, which are not binding. (Cal.

Rules of Court, Rule 8.1115 [unpublished cases not citable, with limited exceptions not applicable here]; United Firefighters of Los Angeles City v. City of Los Angeles (1989) 210 Cal.App.3d 1095, 1115 [“a decision of a federal district court has no precedential value ... at best, it is persuasive authority only”].) Further, moving party does not provide evidence that data collection did not occur in California, as alleged by plaintiff. Moreover, moving party does not address plaintiff’s common law invasion of privacy claim, nor show how it has a reasonable probability of prevailing there.

The court also notes that Code of Civil Procedure section 995.240 states:

The court may, in its discretion, waive a provision for a bond in an action or proceeding and make such orders as may be appropriate as if the bond were given, if the court determines that the principal is unable to give the bond because the principal is indigent and is unable to obtain sufficient sureties, whether personal or admitted surety insurers. In exercising its discretion the court shall take into consideration all factors it deems relevant, including but not limited to the character of the action or proceeding, the nature of the beneficiary, whether public or private, and the potential harm to the beneficiary if the provision for the bond is waived.

Plaintiff has previously obtained a fee waiver (ROA 8), and his supporting declaration sufficiently shows that his financial situation has not changed significantly, so as to justify review of his fee waiver status, or that he has any other significant assets to support issuance of bond. (McColgan Decl., ¶¶ 4-8; Code Civ. Proc., § 995.240 [waiver of bond requirement due to indigency]; Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1433–1434 [trial court’s refusal to vacate its order requiring an

undertaking or reduce the amount of the undertaking of an indigent plaintiff was an abuse of discretion.].)

So even if moving-party could show a reasonable probability of prevailing at trial, the court in its discretion may still not require an undertaking.

Plaintiff shall give notice.

8 Xirinachs vs. Tallman

2026-01565134 Demurrer to Complaint

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