Law Religion Culture Review

Exploring the intersections of law, religion and culture. Copyright by Richard J. Radcliffe. All rights reserved.

Thursday, June 18, 2009


In California, one of the lesser known and used tools in the defense counsel's toolbox is a motion for undertaking (i.e. bond) and stay.

This statute provides: "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." (C.C.P. Section 1030(a).)

The standard for obtaining a bond is relatively low: “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 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.” (C.C.P. Section 1030(b); emphasis supplied.)

Further, if the motion is timed adeptly, it can stay a plaintiff's action. "If the defendant's motion for an order requiring an undertaking is filed not later than 30 days after service of summons on the defendant, further proceedings may be stayed in the discretion of the court .... The hearing on the application for the stay shall be held not later than 60 days after service of the summons." (C.C.P. Section 1030(e); emphasis supplied.)

In one of my current cases, the plaintiff filed a lawsuit against my clients wherein it admitted that it was incorporated in an east coast state. At the outset, I filed the motion for bond and undertaking within these deadlines--within 30 days of service--and set the hearing to occur within 60 days of service.

The court found that I had met the requirements for the bond and ordered the plaintiff to file the bond and stayed the case unless and until it did so. I served notice of the ruling and a copy of the court's order on opposing counsel.

At the next hearing, a comical exchange ensued between plaintiff's counsel and the judge.

The judge asked if the ordered bond had been filed.

Counsel responded: "We are in the process of filing the bond."

Judge: "So it hasn't been filed yet. When is it going to be filed?"

Counsel: "Soon."

Judge: "This case is stayed. Nothing can be done on your case, counsel."

Counsel: "We didn't think the case had been stayed."

Judge: "What do you mean you didn't think the case had been stayed? I stayed it!"

Counsel: "We were confused."

At that point, the court dismissed us with the admonition that plaintiff's case was dead in the water. And it remains so.