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Legal Memorandum: Security for Costs and Attorney's Fees

Issue: Whether, according to Cal. Civ. Proc. Code 1030(a), a Defendant can require a Plaintiff, to file an undertaking to secure an award of costs and attorney’s fees which may be awarded in an action.

Area of Law: Litigation & Procedure
Keywords: Recoverable costs and attorney's fees secured; Out-of-state plaintiff; Grounds for an undertaking
Jurisdiction: California
Cited Cases: 164 Cal. App. 3d 907; 743 P.2d 1279; 90 Cal. App. 4th 1427
Cited Statutes: Code of Civil Procedure § 1030, § 1030(a); Cal. Civ. Proc. Code § 1030(a), § 1030(b), § 1030(c), § 128.7, § 128.7(b)(2), § 1624(a)(1)
Date: 12/01/2005

            “Code of Civil Procedure section 1030 provides that upon a defendant’s motion, the trial court is required to order an out-of-state plaintiff to file an undertaking to secure recoverable costs and attorney’s fees if the defendant shows a reasonable possibility that it will obtain judgment in the action.”  Baltayan v. Estate of Getemyan (2d Dist. 2001) 90 Cal. App. 4th 1427, 1430 (emphasis added).

Section 1030(a) provides that a plaintiff may be required to post a bond for the defendant’s costs and attorney’s fees as follows:

When the plaintiff in an action . . . resides out of the state, . . . 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 . . ..

Cal. Civ. Proc. Code § 1030(a).  Section 1030(b) states that such a bond may be required upon the defendant’s showing two grounds:

The motion shall be made on the grounds that [1] the plaintiff resides out of the state or is a foreign corporation and that [2] there is a reasonable possibility that the moving defendant will obtain judgment in the action or special proceeding.  The motion shall be accompanied by an affidavit in support of the grounds of the motion and by a memorandum of points and authorities.  The affidavit shall set forth the nature and amount of […]

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