Bank of America National Trust & Savings Ass'n v. Superior Court

California Court of Appeal Oct 31, 1967 No. Civ. 844Published

Before: Stone

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Holding. The court held that trial courts possess the inherent power to waive the requirement of security for costs under Code of Civil Procedure section 1030 for indigent litigants, consistent with the common law doctrine of in forma pauperis.

Issues

Does a trial court have the inherent power to waive the security for costs requirement under Code of Civil Procedure section 1030 for an indigent plaintiff?
Did the trial court abuse its discretion by granting relief from the security requirement based on the pleadings?

Disposition. denied

Quotations verified verbatim against the opinion

“unless a statute requiring the posting of security for costs clearly and manifestly expresses an intent to deprive the courts of their common law power to waive fees and security for costs of an indigent litigant, under the doctrine of in forma pauperis the court retains this inherent power.”

“We believe parallel reasoning applies to Code of Civil Procedure section 1030.”

“When a motion of this character is predicated solely upon the pleadings, the allegations of the complaint must be deemed to be true for the purposes of the particular motion.”

STONE, J.

This matter comes to us upon a petition for a writ prohibiting further proceedings in the Superior Court of Fresno County by real parties in interest, nonresidents, whom the court ruled need not file security for costs pursuant to Code of Civil Procedure section 1030.

A. D. Willburn filed an action in the Fresno County Superior Court against petitioners and others, seeking damages. The complaint is framed in several causes of action, but only the third purports to allege a cause of action against petitioners, Bank of America and its agent.

On July 25, 1966, petitioners filed a demand for security for costs, pursuant to section 1030 of the Code of Civil Procedure. Thereafter, on November 17, 1966, Willburn was adjudicated a bankrupt in the United States District Court for the District of New Mexico. The trustee in bankruptcy authorized local counsel to proceed with the action, and suggested to counsel by letter that perhaps Willburn individually might post security for costs and proceed with the action as there were no funds in the bankruptcy estate of Willburn and little likelihood there would be any.

Thereafter Willburn filed a declaration stating that he had been adjudged a bankrupt and had no money with which to pay fees or court costs, and moved the court for an order exempting him from the deposit of security for costs. The trial court granted the motion, and this petition for writ of prohibition followed.

Not all aspects of the question posed are novel. A similar question was considered in

County of Sutter

Superior Court,

244 Cal.App.2d 770 [53 Cal.Rptr. 424], The statute involved in

Sutter

was Government Code section 947, which provides for an undertaking by a plaintiff as security for allowable costs when demanded by a public entity defendant. The trial court in

Sutter

dispensed with an undertaking, despite the defendant’s demands for one under the statute, upon the ground the plaintiff was an indigent and entitled to relief under the doctrine of

in forma pauperis.

[573]

Bank of America National Trust & Savings Ass'n v. Superior Court

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STONE, J.

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