Case Number: BC672889 Hearing Date: November 28, 2018 Dept: 2

Motion by Defendant, Zhorik Isayan, for Security Undertaking Pursuant to Cal. Code Civil Procedure § 1030, filed on 7/20/18, is DENIED.

The court can order Plaintiffs to post an undertaking to secure costs that may be incurred by Defendant if Defendant can show Plaintiffs are non-residents, and there is a reasonable possibility that Defendant will obtain judgment. Cal. Code Civil Procedure §1030.

The intent of the statute is to prevent out-of state residents from filing frivolous lawsuits. Yao v. Superior Court (2002) 104 Cal. App. 4th 327, 331.

Plaintiffs do not dispute that they are residents of Nevada as alleged in the complaint. Complaint, ¶¶ 1-3.

However, the motion should be DENIED as Defendant has not met his burden of proof. The second prong of the statute requires that Defendant establish that it is “reasonably possible” that he would obtain a judgment.

The motion must be supported by “competent evidence. A. Farber and Partners, Inc. v. Garber (C.D. Cal. 2006) 417 F.Supp.2d 1143, 1147.

The moving party must present the “best evidence available” to divine the possible outcome. Shannon v. Sims Service Center, Inc. (1985) 164 Cal.App.3d 907, 914.

The cases cited by Defendant involved more substantial evidence to support the

granting of the motion to require an undertaking.

In Shannon v. Sims Service Center, Inc. (1985) 164 Cal.App.3d 907, 914, the court

recognized “that it is impossible to predict in advance the outcome of a trial by jury, respondent, however, presented the best evidence available to divine the possible outcome of the trial de novo, which is all that section 1030, subdivision (a) of the Code of Civil Procedure requires.” Shannon at 914.

The Shannon trial court had the benefit of the results of a full arbitration hearing that occurred prior to the hearing on the motion for an undertaking, where both sides presented evidence to an arbitrator. The arbitrator found in favor of the Defendant. Therefore, at the motion to require an undertaking, the trial court concluded that based on this “best evidence,” Defendant met its burden of proving a reasonable possibility of prevailing. Shannon at 910.

Defendant also cites Baltayan v. Estate of Getemyan (2001) 90 Cal. App. 4th 1427, 1432-1433, wherein the court also had the benefit of an arbitrator’s findings, statements contained in a police report, and both parties’ expert reports on accident reconstruction. The court found that the Defendant there satisfied its burden with sufficient evidence. Baltayan v. Estate of Getemyan (2001) 90 Cal. App. 4th 1427, 1432-1433.

Defendant also cites Pittman ex rel. L.P. v. Avish Partnership (9th Cir. 2013) 525 Fed.Appx. 591, 593, which is factually distinguishable. The Court’s decision to require an undertaking was based on evidence that Plaintiff’s attorney had a history of filing frivolous ADA lawsuits. There was evidence that the Pittman Plaintiffs had testified in a prior lawsuits that were irreconcilable with the allegations against the Avish Partnership. The evidence was sufficient to support a finding that the Pittman lawsuit was “frivolous and without merit.” Pittman ex rel. L.P. v. Avish Partnership (9th Cir. 2013) 525 Fed.Appx. 591, 593

Here, Defendant provides copies of photographs of the Defendant’s Honda Prius, showing damage to the driver’s side, front corner of the vehicle. Motion, Ex. A. Defendant’s counsel declares that based on his experience, there is a reasonable possibility that Defendant will prevail. Hong Declaration, 9:25-26. There is no competent evidence to support this conclusion, such as in Baltayan and Shannon, where the trial Court had the benefit of a fully developed evidentiary record including expert and witness testimony.

As Defendant is the moving party, Defendant has the burden of proof which is not met.

Moving party is ordered to give notice.