2015-00179003-CU-OE

Martina Silva vs. Dept. of Housing & Community Development

Nature of Proceeding: Motion for Order Requiring Plaintiff to File Undertaking (Diane

Filed By: Koenigsberg, Marc B.

Defendant HCD’s Motion for Order Requiring Plaintiff Diane Snyder Harms to file an undertaking pursuant to CCP 1030 is denied

Defendant seeks an order requiring plaintiff Diane Snyder-Harms (“Plaintiff’) to file an undertaking to secure an award of costs in the amount of $35,327.50. This motion is based upon the grounds that Plaintiff is not a resident of the

State of California, and that HCD has a reasonable possibility of obtaining judgment in its favor. This motion is based on the provisions of Section 1030 of the California Code of Civil Procedure.

CCP 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. If the undertaking is not posted, the action shall be dismissed as to the defendant in whose favor the order requiring the undertaking was made. CCP 1030(d).

Defendant relies on the evidence offered in support of its motion for summary judgment to establish it has a reasonable possibility of prevailing on the claim for sexual harassment. However, in a related motion on this calendar, the Court has tentatively denied defendant’s motion for summary judgment on both procedural and substantive grounds. The Court tentatively finds that the FEHA complaint satisfied the exhaustion of administrative remedies requirement, that HCD’s evidence in support of the motion did not meet its burden to show that no sexual harassment occurred, and that the evidence raised an issue of fact as to whether a failure promote occurred within one year before the FEHA complaint was filed. Thus, defendant has not established that it has a reasonable possibility of prevailing in the action.

The purpose of CCP secon 1030 is to protect California residents who are sued by out -of-state plaintiffs when there is no reasonable possibility the out-of-state plaintiff will prevail. Yao v. Superior Court (2002), 104 Cal. App. 4th 327, 331. As defendant has not shown that plaintiff has no reasonable possibility of prevailing, the motion is denied.