Defendants’ Motion to Require Plaintiff to Comply with Statutory Undertaking
2026CUCO059612: XIRGO TECHNOLOGIES, LLC, A DELAWARE LIMITED LIABILITY CORPORATION, vs SHAWN ALEMAN, AN INDIVIDUAL, et al. 05/29/2026 in Department 43 Motion for Order REQUIRING PLAINTIFF TO COMPLY WITH STATUTORY UNDERTAKING REQUIREMENT: CCP 1030
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Motion: Defendants Motion to Require Plaintiff to Comply with Statutory Undertaking
2026CUCO059612: XIRGO TECHNOLOGIES, LLC, A DELAWARE LIMITED LIABILITY CORPORATION, vs SHAWN ALEMAN, AN INDIVIDUAL, et al.
Tentative Ruling: Defendants Motion to Require Plaintiff to Comply with Statutory Undertaking is GRANTED. Defendants have established a reasonable probability of prevailing as to at least one cause of action.
DISCUSSION
I.
Legal Standard
When a plaintiff resides out of state the defendant may move for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorneys fees. (Code Civ. Proc. § 1030, subd. (a).) The defendant must show that there is a reasonable possibility that the moving defendant will obtain judgment in the action and the defendant shall file an affidavit setting 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 (Code Civ. Proc. § 1030, subd. (b).) [Defendants] were not required to show that there was no possibility that [plaintiff] could win at trial, but only that it was reasonably possible that [defendants] would win. (Baltayan v. Estate of Getemyan (2001) 90 Cal. App. 4th 1427, 1432.)
II. Application
Xirgo has withdrawn its breach of contract claim, and Defendants have established a reasonable possibility of prevailing on at least one of the remaining claims. The CUTSA displacement question for the remaining tort claims is a close call, but defendants have met the low threshold necessary to demonstrate a reasonable possibility of prevailing. Thus, Defendants meet the requirements of the statute to establish that an undertaking is required.
The appropriate bond amount is an issue. The Court is not persuaded that the $1,000,000 requested is appropriate because it is primarily based on what other cases in this category typically cost to litigate rather than estimating the anticipated costs and fees for this particular matter. The Court will permit the moving party to file a supplemental affidavit which sets forth the nature and amount of the costs and attorneys fees the defendant has incurred and expects to incur by the conclusion of the action or special proceeding. This affidavit shall be filed and served on or before June 4, 2026. Plaintiff shall have five days after service of the affidavit to file and serve a brief in response. The brief shall be limited to five pages and shall only address the items discussed in the affidavit. The Court will thereafter issue a ruling without a further hearing.
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