Case Number: KC066113    Hearing Date: August 12, 2014    Dept: O

Ni, et al. v. Fidelity National Title Company, et al. (KC066113)

Defendants Chou and Re/Max 1000 Realty’s MOTION FOR AN ORDER THAT PLAINTIFFS POST UNDERTAKING FOR COSTS PER CCP 1030

Respondent: Plaintiffs Ni, Jian, Zhang, and Cui

TENTATIVE RULING

Defendants Chou and Re/Max 1000 Realty’s motion for an order that plaintiffs post undertaking for costs per CCP 1030 is DENIED.

(a) When the plaintiff in an action or special proceeding resides out of the state, or is a foreign corporation, 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 or special proceeding. For the purposes of this section, “attorney’s fees” means reasonable attorney’s fees a party may be authorized to recover by a statute apart from this section or by contract. (b) The motion shall be made on the grounds that the plaintiff resides out of the state or is a foreign corporation and that 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 for the motion and by a memorandum of points and authorities. The affidavit shall set 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 or special proceeding. (CCP 1030(a) and (b).)

The court finds Defendants failed to meet their burden of establishing a “reasonable possibility” of obtaining a judgment in his favor. Defendants rely on the declaration of their counsel, Daniel Dik, who declares at Par. 8 that: Chou forwarded to Plaintiffs the information that she received or believed that she had received from the escrow company for Fidelity National Title. Chou expressed her concerns to Ni about the manner in which the transaction was proceeding. Ni acknowledged Chou’s concerns, but insisted on moving forward with the wire transfer, and insisted upon closing the deal regardless of any misgivings. When payment was not received by Fidelity escrow, Chou advised Ni to stop payment at the Bank of America branch. Chou contacted law enforcement and launched her own investigation. Chou advised Ni to hire an attorney to recover the money. Plaintiff Ni confirmed to Chou that Plaintiffs had recovered all funds wired. Ni successfully purchased the property through a different broker. However, Dik’s declaration is inadmissible hearsay.

In their Reply, Defendants contend that they have an unidentifiable expert, who can attest to hearsay evidence. But that expert’s declaration is not before this court and is irrelevant for purposes of this motion. Defendants also submit Chou’s declaration, but she does not corroborate any of Dik’s facts.

Based on the totality of the evidence presented, Defendants failed to meet their burden. Motion is DENIED.