1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MARIANNE FULLOVE, Case No. 24-cv-02616-JSW

8 Plaintiff,

ORDER DENYING MOTION FOR

9 v. BOND; MOTION FOR WRIT OF

ATTACHMENT

10 SHALUINN FULLOVE, Re: Dkt. Nos. 43, 69 Defendant. 11

12 13 Now before the Court is the motion for bond filed by Defendant Shaluinn Fullove, (Dkt. 14 No. 43), and the motion for writ of attachment filed by Plaintiff Marianne Fullove, (Dkt. No. 69). 15 The Court has considered the parties’ papers, exhibits, relevant legal authority, and the record in 16 this case, and it finds the matter suitable for resolution without oral argument. See Civ. L.R. 7- 17 1(b). For the following reasons, the Court DENIES both motions. 18 BACKGROUND 19 As set forth in greater detail in the Court’s order granting Defendant’s motion to dismiss 20 the Second Amended Complaint, (Dkt. No. 99), this dispute centers on a falling out between 21 Plaintiff and Defendant which ultimately resulted in Plaintiff’s alleged ouster from a shared 22 condominium in Boulder, Colorado (the “Condo”). Plaintiff, who is Defendant’s mother, alleges 23 that she and Defendant agreed orally to purchase the Condo for personal use and as a potential 24 future rental property. 25 The Condo is in Defendant’s name only. Plaintiff wired Defendant $145,000 for a down- 26 payment on a fifty percent interest in the property, but Defendant allegedly fraudulently induced 27 Plaintiff to sign a later-dated promissory note to conceal the purpose of the transfer. Plaintiff paid 1 September 2021. She helped to decorate the Condo, attended an HOA meeting, and took care of 2 maintenance and repair issues. In April 2024, Defendant told Plaintiff that Plaintiff was no longer 3 permitted to use the Condo. 4 The disputed promissory note includes the following provision regarding attorney fees: “If 5 action be instituted on this note, we promise to pay such sum as the Court may fix as attorney fee.” 6 (See Dkt. No. 43-5, Ex. 1 to Declaration of Shaluinn Fullove, “Promissory Note (Unsecured)”.) 7 Plaintiff brings six causes of action against Defendant: (1) financial elder abuse in 8 violation of California’s Elder Abuse Act, Cal. Welf. & Inst. Code §§ 15600 et seq.; (2) breach of 9 express joint venture agreement; (3) breach of implied joint venture agreement; (4) breach of 10 fiduciary duty; (5) intentional misrepresentation; and (6) conversion. Defendant moved to 11 dismiss, arguing that all of Plaintiff’s claims are premised on an oral contract for a transfer of an 12 interest in land, which is barred by California’s statute of frauds. The Court agreed and granted 13 the motion, with leave to amend. 14 ANALYSIS 15 Both parties seek an order forcing the other to secure their property in the event of loss: 16 Defendant seeks an order requiring Plaintiff to post a bond for $750,000 for Defendant’s 17 anticipated fees and costs through trial, and Plaintiff seeks an order attaching Defendant’s assets in 18 the amount of $1,313,108.64 for Plaintiff’s anticipated recovery, fees, and costs through trial. 19 A. The Court Denies Defendant’s Motion for a Bond. 20 District courts have inherent authority to require parties to post an undertaking at the outset 21 of litigation. Simulnet E. Assocs. v. Ramada Hotel Operating Co., 37 F.3d 573, 574 (9th Cir. 22 1994). Courts typically “follow the forum state’s practice with regard to security for costs.” Id. 23 Civil Local Rule 65.1 permits courts, “where authorized by law and for good cause 24 shown,” to “require any party to furnish security for costs which can be awarded against such 25 party in an amount and on such terms as the Court deems appropriate.” Civ. L.R. 65.1(a). As 26 relevant here, California Code of Civil Procedure section 1030 authorizes courts to order a non- 27 resident plaintiff to post “an undertaking to secure an award of costs and attorney’s fees which 1 the plaintiff resides out of state or is a foreign corporation and that [ii] there is a reasonable 2 possibility that the moving defendant will obtain judgment in the action[.]” Id. § 1030(b). 3 Here, the parties agree that Plaintiff resides outside of California. Thus, Section 1030 4 authorizes the Court to require Plaintiff to post a security if it is “reasonably possible” that 5 Defendant will prevail. 6 However, district courts do not apply Section 1030 mechanically so “as to require every 7 out-of-state litigant who brings a non-frivolous suit in California to post a bond simply because 8 there is a reasonable chance the defendant may prevail.” BladeRoom Grp. Ltd. v. Facebook, Inc., 9 No. 5:15-cv-01370-EJD, 2018 WL 1989530, at *2 (N.D. Cal. Jan. 4, 2018) (quoting Circle Click 10 Media LLC v. Regus Mgmt. Grp. LLC, No. 3:12-cv-4000-SC, 2015 WL 6638929, at *16 (N.D. 11 Cal. Oct. 29, 2015)). The purpose of Section 1030 “is to enable a California resident sued by an 12 out-of-state resident to secure costs in light of the difficulty of enforcing a judgment for costs 13 against a person who is not within the court’s jurisdiction” and “to prevent out-of-state residents 14 from filing frivolous lawsuits against California residents.” Alshafie v. Lallande, 171 Cal. App. 15 4th 421, 428 (2009) (quoting Yao v. Superior Ct., 104 Cal. App. 4th 327, 331 (2002)) (internal 16 marks omitted). If the Court finds that the purpose of the statute is not furthered, it will not 17 require a bond. 18 In determining whether security is appropriate, courts consider “(i) the degree of 19 probability/improbability of success on the merits, and the background and purpose of the suit; (ii) 20 the reasonable extent of the security to be posted, if any, viewed from the defendant’s perspective; 21 and (iii) the reasonable extent of the security to be posted, if any, viewed from the nondomiciliary 22 plaintiff’s perspective.” Simulnet, 37 F.3d at 576 (quoting Aggarwal v. Ponce School of Medicine, 23 745 F.2d 723, 727-28 (1st Cir. 1984)). 24 The first factor, probability of success on the merits, is neutral. The Court has granted 25 Defendant’s motion to dismiss, with leave to amend. The allegations and legal framing in the 26 anticipated third amended complaint remain to be seen. It is possible that Plaintiff will not be able 27 to avoid the statute of frauds, as Defendant claims. However, the record in this matter to date 1 disputed promissory note and Plaintiff’s interest or lack thereof in the Condo. For example, 2 Plaintiff insists that the promissory note was fraudulent and executed months after Plaintiff wired 3 $145,000 to Defendant as a down payment on her 50 percent interest in the Condo, while 4 Defendant insists that the promissory note memorialized a contemporaneous transaction. The 5 months-long gap between the wire transfer and the promissory note creates questions regarding 6 the note’s validity. Although the Court has granted Defendant’s motion to dismiss, the Court 7 cannot say that the lawsuit is frivolous. 8 The background and nature of the suit are similarly neutral. The Court has admonished 9 both parties to be civil; this dispute is emotionally charged. Plaintiff’s original counsel made 10 some questionable filing decisions, including publishing the name of a minor and withdrawing and 11 refiling motions after Defendant responded. However, the Court cannot conclude at this time that 12 Plaintiff’s purpose in bringing the suit is illegitimate or abusive. Plaintiff contends that Defendant 13 swindled over $200,000 by making misrepresentations—a sum that exceeds her annual pension. 14 The second factor, the reasonableness of the security from the Defendant’s perspective, 15 weighs in favor of Defendant. Defense counsel represents that costs of prosecuting this action 16 through summary judgment will exceed $900,000. Defendant’s request for a smaller security of 17 $750,000 is a compromise, assuming that Defendant would be entitled to attorney’s fees in the 18 event she prevails.1 19 The third factor, reasonableness of the security from the Plaintiff’s perspective, is neutral. 20 Plaintiff does not dispute Defendant’s claim that $750,000 is “well within [her] means.” (Dkt. No. 21 43, Mot. for Bond, at 13:19.) Plaintiff instead contends that her “assets are more than sufficient to 22 cover the . . . fees and costs claimed by Defendant” should Defendant prevail. (Dkt. No. 61, Opp. 23 to Mot. for Bond, at 7:1.) Even so, the sum exceeds the equity Plaintiff possesses in her home and 24 equates to approximately four years of Plaintiff’s income. 25 Given that the factors are neutral or only slightly weigh in favor of Defendant, the Court 26

27 1 The parties dispute whether attorneys’ fees are available in this action. Because the Court denies ] finds a bond inappropriate. A bond will not further the objectives of Section 1030 by deterring 2 || frivolous suit or ensuring that a foreign plaintiff cannot avoid an award of fees and costs. 3 || B. The Court Denies Plaintiff's Motion for a Writ of Attachment. 4 Federal Rule of Civil Procedure 64 permits a district court to issue a writ of attachment if 5 || that remedy is available under the law of the forum state. Fed. R. Civ. P. 64. In California, 6 || attachment may be available if the claim has “probable validity,” meaning “it is more likely than 7 || not that the plaintiff will obtain a judgment against the defendant on that claim.” Cal. Code Civ. 8 || P. § 481.190. 9 The Court has dismissed the Second Amended Complaint in its entirety. Plaintiff □□□ no 10 || pending claims on which “it is more likely than not” that she will prevail. Accordingly, 11 attachment is unavailable.

L CONCLUSION

13 Defendant’s Motion for Bond and Plaintiff's Motion for Writ of Attachment are denied, 14 || with prejudice.

IT IS SO ORDERED.

A 16 Dated: December 2, 2024 fo Cb LWhis 17 □□□

JEFFREY $. WHI

Zz 18 United Fates Distgict Judge

20 21 22 23 24 25 26 27 28